2004 PLP 1139 (YLR)

3. Learned counsel appearing for the respondent contends that the impugned order has been passed after hearing the appellants. According to him, the original order dated 19-4-2003 was passed by the Authority itself. Refers to section 3(10) of the said Act to urge that the impugned order was not liable to be interfered with for the reasons of any vacancy in the Authority or any defect in its constitution. Learned counsel, however, is unable to demonstrate that the said original order dated 19-4-2003 was in fact passed by the authority constituted properly or otherwise.

4. I have given some thought to the respective conventions of the learned counsel for the parties and have examined the impugned orders dated 19-4-2003 and 11-10-2003 in the light thereof.

5. Before I proceed further I deem it proper to reproduce here Clause 34.2 of the said contract:-- "34.2. Non-exclusivity. The contractor will provide DSL services through industry-standard market-based DSL technology on non-exclusive basis, and PTCL will not be prevented by virtue of this agreement from engaging any other contractors to provide DSL services, in Pakistan. Further outsourcing of DSL services provisioning shall be determined by PTCL after consideration of the market dynamics." It will be seen that non-exclusivity envisaged in the said clause was made subject, of course, by agreement of the said parties, to a determination to be made by PTCL after consideration of the market dynamics. Grievance being made out by the appellants is that no such determination was made by the PTCL and certainly not to their notice and knowledge. Now the said order dated 19-4-2003 narrates that the PTCL has already launched the said DSL services in collaboration with the private sector. There is no denial that the reference is to the present appellants. The order then proceeds as follows:-- "The Authority after considering all the pros and cons has decided to allow all the licensed ISPs to offer broadband DSL services in order to promote high speed Internet services to the consumers. The ISPs shall have to sign an Inter connect agreement with PTCL for the provision of DSL services. The existing M & O contracts of PTCL shall continue as such. However, PTCL shall submit their tariff proposal to PTA for prior approval". Now it will be seen that there is no reference at all in this order either to the contents of the said Clause 34.2 or to any process applied for determining the market trends or dynamic. Now a copy of the market survey allegedly got conducted by the PTCL is Annexure K. This document was filed in the said Civil Court proceedings. This document does not disclose as to who has conducted the said survey and when. Besides this the said document itself concludes that in order to get more dependable findings a systematic market research study to be conducted. Now the impugned order although reproducing some portion of the said alleged survey itself is silent as to who conducted the said market dynamics study. So far as the said presentation is concerned, letter dated 22-3-2003 of the respondent Authority narrates that presentation has been arranged by a representative of Messrs Cyber Internet Services in A Conference Room of PTA on 22-3-2003. Copy of this letter has, of course, been issued to the appellant No.

1. It has not been denied that the said Organization was one of the failed bidders as stated by the learned counsel for the appellant.

6. Now the impugned order gives impression that the respondent-Authority treated the order dated 19-4-2003 to be an order passed by an officer of the Authority. In the entire text of the order the matter has been dealt with accordingly. Now the functions of the Authority have been narrated in section 4 of the said Act while the powers to be exercised are narrated in section 5 of the said Act. Section 9 permits the respondent-Authority by general or special order to delegate any of its powers under Clause (G), (I), (K) and (L) of B section 5 of the said Act. Upon plain reading of sections 4, 5 and said section 9 of the said Act, the powers vesting in the Authority in the matter of contracts and further in the matter of dispute between the Licence and the contractors of the category of the appellants are outside the purview of section 9 of the said Act. I have already stated above that the learned counsel for the respondent has not been able to demonstrate from the record present with him that the order dated 19-4-2003 in fact was passed by the Authority notwithstanding its constitution.

7. Section 6 of the said Act defines responsibilities of the respondent-Authority. I am constrained to observe that both the impugned orders do not fulfill criteria laid down in section 6 of the said Act.

8. In view of the above discussion, I find that in the very first instance it was for, the respondent-Authority itself to have taken said decision in strict compliance with the provisions of section 6 of the said Act, of course, after giving a notice to the appellants who are certainly persons affected by the said decision or the determination to be made after determination of market dynamics. Said alleged market survey is not free from doubt apart from the fact that it is not conclusive in its own terms.

9. This R.F.A. accordingly is allowed and the impugned orders are set aside. The matter is remanded back to the respondent Authority for determination in the said DSL case after notice to the appellants and all concerned, hearing them and, of course, after getting conducted a fresh market dynamics study/survey. The matter to be so concluded within two months of the receipt of this order. Copy be remitted to the said respondent-Authority by the office immediately. S.A.K./M-9/L Case remanded.