2006 PLP 240 (CLC)

FAISAL ARAB, J.

The plaintiff is a company engaged in the publication of newspapers and periodicals for the purposes of expeditious transmission of news, the plaintiff in 1985 obtained facility of point to point teleprinter circuit between Karachi and Lahore from the defendant. For such purpose two Teleprinter Machines were installed in the plaintiff's office for which the plaintiff was required to pay machine rent, general rent and line rent. The plaintiff was required to pay rent for each machine @ of Rs.20,000 per annum, Rs.3,67,200 as general rent for 1530 kilometer distance between Karachi and Lahore, fixed at the rate of Rs.240 per kilometer and a fixed line rent of Rs.720 per annum. Between 1985 to 1995 the rentals of the machines were reduced from time to time on account of depreciation. The rate of depreciation of the said machines is mentioned in Annexure "A" filed with the plaint, which is not disputed. On 30-1-1995 the plaintiff wrote a letter to the defendant intimating their intention to discontinue the use of teleprinters. The receipt of the said letter has not been disputed. On 28-2-1995 the defendant after receipt of plaintiff's letter, dated 30-1-1995 sent a revised bill seeking retrospective enhancement of rates w.e.f. 1-7-1993. Through this revised bill, point to point charges were increased to Rs.1,440 per kilometer from Rs.240 per kilometer and the line rent was increased from -720 to Rs.2,880 and a demand of Rs.33,01,910 was raised against the plaintiff. On 9-10-1995 defendant sent another bill which covered charges upto 31-12-1995 wherein a demand of Rs.38,59,919 was made. The counsel for defendant candidly concedes that defendant is .entitled to claim charges only upto 30-1-1995 when the plaintiff sought termination of service. Thus, the only controversy left in the present suit is whether the defendant is entitled to the revised rates with retrospective effect. The burden was on the defendant to establish this. Counsel for the defendant referred to section 16 of Pakistan Telecommunication Act, 1991 and contended that the defendant was well within its rights to revise tariffs rates. He during the course of the arguments produced minutes of 36th PTC Board meeting held on 25-2-1993 at PTC Head Quarter, Islamabad whereby the tariff was revised and a letter dated 7-3-1993 showing Federal Government's approval of the revised rates. Counsel for the plaintiff has seriously objected to production of such documents on the ground that the defendant had failed to lead any evidence though the burden was on the defendant to establish revision in the rates. The plaintiff has every right to oppose belated introduction of documents by the defendant at the argument stage. No party can be permitted to take the other side by surprise, nor can be permitted to introduce documents at belated stage without any lawful excuse. However, even if this Court for the time being ignores such legal infirmity and consider such documents it becomes apparent that the revision of rates which are claimed to have been made in February, 1993 B should have been notified to the subscribers either through gazette notification or through publication in the newspapers. Neither of the two modes was resorted to. Surprisingly the plaintiff was not even billed at the revised rates in the relevant years and the defendant continued to bill the plaintiff at the original rates. For two long years the defendant did not demand enhanced rates from the plaintiff and it was only after the plaintiff sought discontinuation of the service vide its letter dated 30-1-1995 that the defendant for the first time issued the revised bill dated 28-2-1995 demanding difference of revised rates from 1993. The question which needs to be resolved in the present suit is whether the revised rate could be made applicable with retrospective effect, as the demand for the revised rates was made by the defendant for the first time on 28-2-1995. When specifically asked by this Court as to whether the decision of revised rates was notified in any manner so that the consumers could come to know of the revised rates from the date when the decision to revise the rates was made, the counsel for the defendant frankly conceded that except for the demand made on 28-2-1995, the revision in the rates was not notified in any manner whatsoever. No doubt section 16 of the PTC Act, empowers the defendant to revise rates but then such revision has to be notified to the consumers so that they may or may not opt to continue with the facility. Admittedly, in the C present case such option was never made available to the plaintiff. In Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 it has been held that an executive order or notification, which is detrimental or prejudicial to the interest of a person, cannot operate retrospectively and only a beneficial order or notification can be given retrospective effect. In Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652, it was held that a notification which purports to impair an existing or vested right or imposes a new liability or obligation cannot operate retrospectively in the absence of legal sanction. In view of the above I find no lawful justification for the defendant to demand revised rates from the plaintiff. In the circumstance, the plaintiff is not liable to pay point to point charges at a rate in excess of Rs.240 per kilometer per annum, nor can plaintiff be charged line rent in excess of Rs.720 per annum. The defendant shall however, be entitled to claim any unpaid charges falling due upto 30-1-1995 at the original rates if such charges still remain to be paid by the plaintiff. The suit is decreed in the above terms. H.B.T./P-1/K?????????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.