BTRC (2) Vs. Ekushey Television Ltd & Bangladesh

Appellate Division Cases

(Civil)

PARTIES

Chairman. Bangladesh Telecommunicatio R e g u I a t o r y Commission

Vs.

Secretary Ministry of Information Affairs and others Appellant in Civil Appeal No. 386-87 of 2003 Nasir A. Cho wdhury … ……………………………………………….Appellant

Vs

Ekushey Television Ltd “. Appellant (in Civil Appeal No. 385387 of 2003)

Bangladesh and other………………………………………………….. Respondent

JUDGES

Syed J. R. Mudassir Hussain C J

Mohammad Kazlul Karim

Amirul Kahir Chowdury J

Date of Judgment

19th July 2005

The Bangladesh Telecommunication Act, 2001 Section 3 31, 35, 36, 55 . The Telegraph Act, (XIII of 1885), Section 4.

The Wireless Telegraphy Act, 1933 Section 5.

The Bangladesh Constitution Articles 39, 40.

Refusing the application to grant licence to broadcast the programmers of Ekushey Television through satellite transmission and arbitrary refusa to grant the required frequencies and malafide rejection of an application for apparatus licence required to broadcast its programmes through a satellite channel by intentionally and willfully misinterpreting a judgment of the Appellate Division of the Supreme Court of Bangladesh (2)

The provisions of section 4 of the Telegraph Act, 1885 and section 5 of the Wireless Telegraphy Act, 1933 that ‘television’ is covered by the definition of ” Telegraph’ as given in the Act of 1885 and as such licence is to be obtained under that Act for broadcasting television programs and as the new Act of 2001 has excluded the application of law itself regarding any broadcasting or granting of licence regarding Radio or television broadcasting station administration of Radio, Television and all other matters relating to broadcasting and television are within the functions and powers of the Ministry of Information (8)

High Court Division miserably failed to distinguish between grant of licence and allocation of frequency which called for separate applications (11)

Writ petitioner should have first applied for licence or no objection for Broadcasting to the Ministry of Information and after obtaining the same then could approach the BTRC

for allocation of frequency and other ancillary matters detailed above. The above position has further been apparent from the letter dated 19.2.2003 issued by the Commission giving permission to International Television (Private) Limited for using the frequency temporarily and also to import machineries for the purpose of Earth Station (82)

A welfare State has necessarily to undertake legislation on ever widening fronts, if the ultimate aim of a socialistic pattern of society with democratic aspiration operating within the domain of rule of law is to be evolved, realised and fulfilled through democratic process (84)

Government is not a disembodie obstruction but a continuing process circumscribed by rule of procedure and business and its at any time the person who man it. A Government is the people, by the people and for the people. Thus a Government in a democracy is a continuing institution composed of the people, elected by the people and for the welfare of the people. The administrative agencies performing their duties and obligations should promote the cause of good governance and should not rush or behave negligently resulting in causing annoyance to the citizen (86)

ADVOCATES

Fida M. Kamal, Senior Advocate, (M. A. Azim Khair, Advocate with him), instructed by Ahsanullah Patwary Advocate-on-Record For the Appellant (Civil Appeal No. 385 of 2003) A. J’.MohammadAH, Attorney General, (Adilur Rahman, Deputy Attorney General with him), instructed by Mrs. Sufia Khatun, Advocate-on-Record. …For the Appellant (Civil Appeal Nos. 386-87 of 2003)

Rafiqiie-Ul-Ihicf, Senior Advocate, (A. Hasih, Senior Advocate with him), instructed by Mvi. Md. Wahidiillah, Advocate-on-Record For the Appellant (Civil Appeal No. 383-84 of 2003

Dr. Kamal Hossain, Senior Advocate, ( Rokanuddin Mahmud, Senior Advocate with him) instructed bv A.S.M. Khalequzzaman Advocate-on-Record For the Respondent No.l (Civil Appeal Nos. 383, 385-387 of 2003) and Respondent No. 10 (Civil Appeal Nos. 384 of 2003)

Not represented. Respondent Nos. 25 (Civil Appeal Nos. 385-86 of 2003) Not represented…..Respondent No. 2 (Civil Appeal No.-;. 387 of 2003)

Not represented. Respondent Nos. 1-9 ( Civil Appeal Nos. 384 of 2003)

JUDGMENT

1. Mohammad Fazlul Karim J: The writ -respondent-appellants obtained leave to appeal to consider the following grounds: “For that exclusion of the application of the Bangladesh Telecommunication Act, 2001 in respect of matters coming under section 3(2) of the said Act being clear and unambiguous, the High Court Division erred in holding “we hold that the Act of 2001 is applicable in respect of all the matters as mentioned in section 3 f the Act and the BTRC is the sole and exclusive authority to grant such license necessary for the purpose in the manner as provided in the Act and no separate license from the Ministry of Information would be necessary for the matters mentioned in section 3 of the Act’ inasmuch as the said inteipretation does violate the categorical and unambiguous provision of law. For that the High Court Division committed gross error of law on the supposed theory of “In interpreting the provision of a statute as cohetsive and workable meaning has to be given and in order to do that theprovisions of the statute have to be read as a whole” and there upon misinterpreted the provision of section 3(2) of the Act, 2001 as to its applicability disregarding the golden rule of interpretation of a statute, namely to intent the legislative to have meant what they have actually expressed.

2. Writ petitions were filed challenging, Y inter alia, an order dated 7.3.2003 issued by the writ respondent No. 3 Chairman. Bangladesh Telecommunication Regulatory Commission (BTRC), refusing the application to grant licence to broadcast the programmes of Ekushey Television through satellite transmission and arbitrary refusal to grant the required frequencies and malafide rejection of an application for apparatus licence required to broadcast its programmes through a satellite channel by intentionally and willfully misinterpreting  a judgment of the Appellate Division of the .Supreme Court of Bangladesh in Civil Review Petition Nos. 78, 79 and 80 of 2002, as a result about 40 million viewers are deprived of their recreation and enjoyment to watch a much loved private channel. That on 6.5.2003 the present Chairman of the writ-petitioner company again appealed to the writ respondent No. 3 for the allocation of frequency and an apparatus licence explaining in detail the circumstances surrounding ETV and the impact of the said judgment but writ-respondent No. 3 through a letter dated 7.5.2003 bearing Memo Nos. BTRC/Prosha-DO/2002/333(2) unlawfully rejected the writ-petitione’s application apparently on the ground that Supreme Court of Bangladesh dismissed the review petitions as a result there is no scope even for consideration of the said application. It may be mentioned here that while dismissing the review petitions the Appellate Division of the Supreme Court at the very last paragraph of its judgment clearly stated that “Our judgment will have no bearing in considering the application by Ekushey for licenes by the said Commission which is free to decide in accordance with law. “Thus under no circumstances, it can be understood or interpreted the way writ-respondent No. 3 viewed the same as a ground for rejecting the writ-petitiones application.

3. Writ-respondent No.2 Secretary. Ministry of Information Affairs contested C.\c ‘-‘ulc denying the statements made in the writ petition and contending, inter alia, that the letter dated 7.6.2003 having been withdrawn by writ-respondent No.3 on 26-62QO3, the cause of action of the writ petition has become non-existent and the rule has become in fructuous.

4. The writ-respondent No.3 Chairman, Bangladesh Telecommunication Regulatory Commission (BTRC) contested the rule stating, inter alia, that the writ petitioner did not submit any application as alleged by him in its office on 29.05.2003 or at any time thereafter praying for allocating frequencies to broadcast its program through satellite and terrestrial channel. It has further been stated that as no aplication was filed praying for licence or for allocating frequency for broadcasting, there was no occasion for considering the application or to give a reply by BTRC and as such the writ petition is misconceived and not tenable in law. The assertion of the writ petitioner line has been omitted writ respondent No. 3 is not the licensing authority for broadcasting television programme and as such over misconception of law the writ petitioner has alleged to have

filed an application for the lincencc although no such application was found after through search.

5. The High Court Division disposed of the rule in Writ Petition No. 4196 of 2003 and made the rule in Writ Petition No. 3488 of 2003 absolute declaring that the impugned order and subsequent actions of the writ respondents in not returning back the equipment of the writ petitioner have been done without lawful authority and are of no legal effect and further directing the writ respondents to return back the seized equipment /machineries as evident from Annexure- F and Fl to the writ petition. The High Court Division, however, disposed of the rule in Writ Petition No. 4607 and 4608 of 2003 in the terms of the observation and findings made in Writ Petition Nos. 3488 and 4196 of 2003.

6. The writ respondents filed Civil Petition No. 285 of 203 but, however, did not prefer any petition for leave to appeal against the other writ petitions except the Writ Petition No. 4196 of 2003 disposing of the rule. Bangladesh represented by the Secretary, Ministry of Post and Telecommunication and the Secretary Home Affairs, Chairman. Bangladesh Telegraph and Telecommunication Board, Commissioner. Dhaka Metropolitan Police ‘ and Officer-in-Chargc in Tcjgaon P.S. however, filed Civil Appeal No. 387 of 2003 against the judgment and order dated 20.08.2003 passed by the High Court Division in Writ Petition No. 3488 of 2003 making the rule absolute directing return of the equipment. Mr. Nasir A. Chowdhury filed the leave petition against the judgment and order dated 20.8.2003 in Writ Petition 3428 of 2003. Mr. Nasir A. Chowdhury . also filed Civil Appeal No. 384 of 2003 T against the judgment and order dated 20.8.2003 in’Writ Petition No. 4196 of 2003.

7. The learned Attorney General, Additional Attorney General and the learned Counsel have further submitted with reference to the provisions of section 4 of the Telegraph Act. 1985 and section 5 of the Wireless Telegraphy Act, 1933 that ‘television’ is covered by the definition of ” Telegraph’ as given the Act of 1885 and as such licence is to be obtained under that Act for broadcasting television programs and as the new Act of 2001 has excluded the application of law itself regarding any broadcasting or granting of licence regarding Radio or television broadcasting station, the High Court Division was absolutely wring in holding that BTRC is the exclusive authority to grant such licence and was also wrong in directing the BTRC to dispose of the application for such licence within 30 days ignoring the broad fact that as the administration of Radio, Television and all other matters relating to broadcasting and television are within the functions and powers of the Ministry of Information and the earlier licence was also obtained by ETV from the Ministry of Information erred in holding “we hold that the Act of 2001 is applicable in respect of all matters as mentioned in section 3 of the Act” and the BTRC is the sole and exclusive authority to grant such licence necessary for the purpose in the manner as provided in the Act .and no separate licence from the Ministry of Information would be necessary for the matters mentioned in section 3 of the Act, inasmuch as the said interpretation does violate the categorical and unambiguous provision of the law in utter disregard of the rule of interpretation that “In interpreting the provision of a statute a cohesive or workable meaning has to be given and in order to do that the provisions of the statute have to be read as whole ” and thereupon misinterpreted the provision of section 3(2) of the Act, 2001 as to its applicability disregarding the golden rule of interpretation of statute, namely ” to intend the legislature to have meant what they have actually expressed” .

8. Both the learned Attorney General and the learned Counsel further submitted that the High Court Division miserably failed to distinguish between grant of licence and allocation of frequency which called for separate applications and there being no application or prayer for grant of licence to establish or operate telecommunication system or undertake any construction work of such system as required by the Bangladesh Telecommunication Act, 2001, the High Court Division’s direction is meaningless and will create confusion rendering the work of the Commission under the provisions of the Telecommunication act difficult.

9. Dr. Kamal Hossain, the learned Counsel appearing for the respondent No.l in Civil Appeal No. 383, 385-387 of 2003 and respondent No. 10 in Civil Appeal No. 384 of 2003 submitted that the appeal is liable to be dismissed in vew of the provisions of section 3(2) in particular the proviso thereof which provides that the 2001 Act shall apply to the following : (i) allocation of frequency for such radio station or television station or broadcasting apparatus, or control of the allocated frequency; (ii) use of a telecommunication apparatus in combination with broadcasting apparatus or use of telecommunication apparatus for the purpose of broadcasting. The appellant relies on the first part of sub-section (2) but advisedly ignores the subsequent part of the said sub section and according to settled principles of interpretation the last part and a proviso should prevail over the first part. Apart from the above, if the provisions of sub section 3(2) and section 31, 35, 36 and 55 of the 2001 Act are read together and a cohesive meaning is given the irresistible inference will be that it is not at all necessary to approach the Ministry for such licence and accordingly, High Court Division considering the above clear provisions of law made the rule absolute with a direction, which is consistent with the law, and thus the appeal should be dismissed with costs. The learned Counsel further submitted that the impugned memo dated 7.06.2003 (Annexure-C-1 of the writ petition No. 4196 of 2003) is arbitrary, ultra vires, illegal, malafide and is made in violation of the fundamental rights guaranteed by the Constitution inasmuch as the rejection for the writ petitioners application was the result of palpable misinterpretation of the judgment of the Appellate Division ; the concluding portion of which expressly stated that any finding thereof shall have no bearing in processing the writ petitioners application and the writ respondents were free to consider any application in accordance with the Act, while declaring that the previous licence was not sustainable in law and that the impugned action of BTRC in holding up grant of frequency and issuance of licence is contrary to the provisions of the Bangladesh Telecommunication Act, 2001.

11. The learned Counsel submitted that the section 36(2)(d) of the Bangladesh Telecommunication Act, 2001 makes it mandatory which states that while considering such application, the Commission shall, among others, consider clause (d) whether issuance of the licence applied for, the activities authorized by the licence, will be discriminatory compared to those of the existing licence holders, and whether the competition scenario will be affected. Hence the rejection of the application is illegal and should be declared to have been made without lawful authority.

12. The learned Counsel further submitted that section 36(2)(e) of the 2001 Act further states that while considering such application, the Commissioner shall, among others, consider how far the issuance of the licence applied for will be consistent with the broad objectives of the Commissioner specified in section 29 making it a mandatory consideration.

13. Dr. Hossain, the learned Counsel submitted that the writ petitioner brought the money from the foreign sector and is a foreign investor and invested a huge amount of money pursuant to the promise and encouragement of the Government.Commission’s failure to take this mandatory section into account before rejecting the writ petitioners application is unwarranted and should be declared to have been made without lawful authority inasmuch as it is against the promise made and undertaking given by the Government in its National Telecommunication Policy 1998 , which was formulated with the view to satisfy the growing demand to provide equitable opportunity and competition amongst the service providers in the private sector, both domestic and foreign.

14. Dr. Kamal urges that the Government also undertook to provide all assistance to make the private sector more vibrant and robust in keeping with the anticipated role in the coming years. It also encouraged the foreign investors to demonstrate their commitment to Bangladesh by forming joint ventures with the local companies and within the telecommunication sector and the Government will consider equity participation of up to 100% of the overall share holding of the telecommunications operating company. The Government also undertook to make all endeavors to remove all procedural and other impediments for quick implementation of the projects including investment proposals from foreign investors in the country.

15. Dr. Hossain further submitted that the action of the respondent No.3 is violative of the Articles 39 and 40 of the Constitution as it restricted the freedom of press ( lectronic meida) and had restricted the appellant from carrying on a lawful business. The same is also discriminatory because there are many satellite channels functioning in the country whereas the writ petitiones application was held up without any justification. The learned Counsel further submitted that the impugned memo is discriminatory and is liable to be struck off arbitrary in view of the principle enunciated in different apex courts of this subcontinent (State of AP Vs. McDowell & Co (1996) 3 SCC 709 (para 44); AIR 1996 SC 1672) as it denies the writ petitiones right to be treated equally with the other private broadcasting channels operation in the country and is thus violative of Articles 27,31,39,41 and 42 of the Constitution.

16. The High Court Division in its wisdom has considered the preambles of the relevant Telegraph Act, 1885, the Wireless Telegraphy Act, 1933 together with that of the Bangladesh Telecommunication Act 2001 to consider as whether later Act, 2001 has any overriding effect over all other legislation’s on the field viz-a-viz the applicability of the old legislation in respect of the granting of licence for Broadcasting as contemplated in section 3(2) of the Bangladesh Telecommunication Act, 2001.

17. It would be profitable to consider the preambles of the concerned Acts in order to appreciate the proposition. The preamble of Act 1885 is as under: “An act to amend the law relating to telegraphs in (Bangladesh) whereas it is expedient to amend the law relating to telegraphs in (Bangladesh).” The Act is thus designed to amend the law relating to telegraph in Bangladesh. The preamble of the Wireless Telegraph, Act, 1933 is as under : “An Act to regulate the possession of wireless telegraphy appaatus whereas it is expedient to regulate the possession of wireless telegraphy apparatus in Bangladesh; The law is designed to regulate the possession of Wireless Telegraphy apparatus in Bangladesh. And the preamble of the Act of 2001 is as under: ” An Act to provide for the

establishment of an independent commission for the propose of development and efficient regulation of telecommunication system and telecommunication services and ancillary thereto”

18. That latest Act is designed to provide for establishment of an independent Commission for the purpose of development of efficient regulation of telecommunication

system and its services and ancillary thereof.

19. In interpreting the aforesaid preamble of the old Acts after the establishment of the BTRC by the Act of 200las an independent commission a person has to fall back upon the provision of section 4 of the Telegraph Act, 1885 and section 5 of the Wireless Telegraphy Act, 1933.

20. Section 4 of the Telegraph Act, 1885 provides for issuance of a licence for the purpose of broadcasting its programme.

21. The High Court Division has adopted the tools of interpretation that in interpreting the provision of a statute a cohesive and workable meaning has to be given and in order to do that the provisions of a statute kept in mind that by giving a narrow meaning of a part of the statute the whole object and aim of the statue itself cannot be made ineffective and held that if even after the enactment of Act of 2001 the provision of section 4 of the Telegraph Act, 1885 and section 5 of the Wireless Telegraphy Act, 1933 arc to be resorted to by a person for the purpose of issuance of licence respect of matter mentioned sub-section(2) of section 3 then the mere purpose of the creation of independent Commission as stated in the preamble of the Act 2001 will be frustrated.

22. The High Court Division further held that the said two sections clearly show that the legislature knowing fully well about the inapplicability of the said two old laws with the modern telecommunication system and service and matters ancillary thereto have given an overriding clause to the new law, the Act of 2001 and held that the Act of 2001 is applicable in respect of all the matters mentioned in section 3 of the Act and BTRC in the sole and exclusive authority to grant such licence necessary for the purpose in the manner as prescribed in the Act and no licence from the Ministry of Information would be necessary for the matters mentioned in section 3 of the Act.

23. In looking at the Preamble as an aid to interpretation of the Act. the cardinal principles of law is that when a preamble lays down the main object of the Act, the same may be resorted to as a legitimate aid in construing the enacting parts. Lord Normand J. in the case of Attorney General Vs. H.R.H. Private Ernest Angestus of Hcnover held that:

” When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act described and it is therefore clearly permissible to have recourse to it as an aid to construing the existing provision”

24. The preamble of Telegraph Act 1885 was to amend the law relating to the telegraph and the preamble of Wireless Telegraphy Act of 1933 was to regulate possession of Wireless Telegraphy apparatus in Bangladesh but the Act of 2001 was for the establishment for an independent Commission for the purpose of development and efficient regulation of the telecommunication systems and telecommunication services and matters ancillary thereto.

25. It is true that when the Acts of 1S85 and 1933 were enacted the telegraph was not developed as it stands today with the introduction of the concept of telecommunication apparatus, telecommunication network, telecommunication system spectrum management committee as introduced by an Act of 2001.

26. The rule of construction is to intend the legislature to have meant what they have really expressed as the object of all interpretation is to discover the intention of the legislature and the same is to be deduced from the language used by it. Where the language is plain and admits of but one meaning the task of interpretation can hardly be said to arise. It is further to be assumed that the words and phrases of technical legislation, like the present one, are used in their technical meaning, if they acquired one or otherwise in their ordinary meaning.

27. From the aforesaid preambles it appears that the object, intent and purpose h of the three allied Acts are different and j distinct. So far Act of 1885 is concerned the scheme and the provision thereof have been aptly considered by the Indian Supreme Court in the case of Secretary, Ministry of Information and Broadcasting, Government of India and others Vs. Cricket Association of Bengal and others reported in AIR 1995 SC 1236 wherein it has been held that: ” Now, coming to the Indian Telegraph Act, 1885 look at its  scheme and provisions would disclose that it was meant for a different purpose altogether. When it was enacted, there was neither Radio nor, of course, television, though it may be that radio or television fall within the definition of “telegraph” in section 3(1). Except section 4 and the definition of the expression “telegraph” no other provision of the Act appears to be relevant to broadcasting media. Since the validity of section 4(1) has not been specifically challenged before us, we decline to express any opinion thereon. The situation is undoubtedly unsatisfactory. This is the result of the legislation in this country not keeping pace with the technological developments. While all the democracies in the world have enacted laws specifically governing the broadcasting media, this country has lagged behind, rooted in the Telegraph Act of 1885 which is wholly inadequate and unsuited to an important medium like radio and television, i.e. broadcasting media. It is absolutely essential, in the interests of public, in the interests of the freedom of speech and expression guaranteed by Article 19(1) (a) and with a view to avoid confusion, uncertainly and consequent litigation that Parliament steps is soon to fill the void by enacting a law or laws, as the case may be, governing the broadcasting media, i.e. both radio and television media.

28. The Wireless Telegraph Act, 1933 made provision for regulating the possession of Wireless Telegraph apparatus which means by section 2(2)”any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under section 10 to be wireless telegraphy apparatus, but does not include any such apparatus, apliamce instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under section 10 not to be wireless telegraphy apparatus.

29. But Bangladesh Telecommunication Act, 2001 has been enacted to keep pace with the technological advancement development, arising out of deficiencies in the existing Acts covering the field to meet with the unsatisfactory situation then prevailing and in order to provide for establishment of an independent Commission for the purpose of development and efficient regulation of telecommunication systems and telecommunication services and for the transfer of powers and functions of the Post and Telecommunication to the Commission as enumerated in the Act itself.

30. From the aforesaid intent, puipose and object of the Act mentioned in the preambles if we consider respective Acts with reference to the principle of interpretation we find that when a preamble laid down the main objects of the Act and the same may be resorted to as a legitimate aid in construing the enacting parts.

31. Sometimes, a long title and the preamble do not furnish a sure guide for the interpretation or construction of a statute but sometimes a perusal of the substantive provision does suggest that they are intended to give effect to the object proclaimed in the long title and the preamble.

32. The duty of the Court is to expound the law as it stands and to leave the remedy (if one to be resolved upon) to others. Thus on perusal of the Act No. 18 of 2001 it appears that the definition of technical words and the provisions have been made for the purpose of development and efficient regulation of telecommunication systems and telecommunication services and for transfer of certain power and function regarding telecommunication to the Commission and matters ancillary thereto which provisions were wanting in the Telegraph Act, 1885 and the Wireless Telegraphy Act 1933 in order to cove the situation henceforth not provided adequately in the previous Acts.

33. The Telegraph Act 1885 has defined the “telegraph” meaning ” an electric, galvanic or magneticic and includes appliances and apparatus for making, transmitting or receiving telegraph, telephonic or other communication by means of electricity, galvanism or magnetism”

34. The Wireless Telegraphy Act has provided for ‘wireless communication’ and possession of ” wireless telegraph apparatus” Wireless communication means “the making, transmitting or receiving of telegraphic, telephonic or other communications by means of electricity or magnetism without the use of wires or other continuous electrical conductors between the transmitting and the receiving apparatus”

35. But the Act of 2001 has provided for the purpose of development and efficient regulation oi~ telecommunication systems and services defining telecommunication as “transmission and reception of any speech, sound, sign, signal, writing, visual image or any other intellectual expression by way of using electricity or electro magnetic or electro-chemical or electromechanical energy through cable, pipe, radio, optical fibber or other electromagnetic or electro chemical or electtro mechanical or satellite communication system, Telecommunication system means a combination of the telecommunication apparatus (e.g. switching system, transmission apparatus, terminal apparatus, satellite etc.) whether or not these equipment are visibly connected with one another, or whether or not they are combinedly used in the transmission or reception of any information or message.

36. From a comparative study of the aforesaid terms provided in different legislation’s it appears that the three Acts distinctly and separately detailed about the gradual developments that have taken place through the passage of time in the field of telegraph, wireless communication and telecommunication systems and services.

37. The respective Acts as aforesaid have used clear and unequivocal language capable of only one meaning and the duty of the Court is to expound the law as it stands and in interpreting the statutes, the Court should not be swayed by motions entertained by it as to what is just and convenient but to expound the lawas it stands.

38. In this respect it should be remembered the statutory principle that caution has always been used while interpreting an Act not to travel beyond the Act itself unless the context so permits. 39. Lord Loredorn in the case of Vickers, Sons nd Maxime Ltd. V. Evano (1910) AC 444 held: ” We are not entitled to read  reasons for it are to be found within the four corners of the Act itself.”

40. It is in keeping with the rule of liberal construction that nothing is to be added or taken from the statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mercy held in Thompson V. Goold & Co (1910) A.C. 409 that: “It is a wrong thing to read into an Act of Parliament words which are not there and in the absence of necessity it is a wrong thing to do.”

41. The High Court Division with reference tojaler legislation has held that the Act of 2001 is the Act providing for issuance of licence for broadcasting.

42. Resort to earlier Act/ Acts could be used as an aid to the construction of the word used in later Act for the purpose where there is something ambiguous or readily capable of more than one interpretation in the earlier Act, that is, thus some phrase fairely and equally bound to a diverse meaning and in the words of Lord Denning in Payne V. Bradley (1962) Ac 343: “If such an ambiguity can be found, it becomes permissible to look at the later Acts, not perhaps to construe the earlier statute but to see the meaning which Parliament puts on the selfsame phrase in a similar context, in case it throws any

light on the matter.”

43. In interpreting a later statute, the Court may call on it all those external and historical facts which are necessary for comprehension of the subject matter and may also consider whether a statute is intended to alter the law or bear it exactly where it stood before.

44. In the backdrop of aforesaid Preambles and the principles of construction and interpretation of the relevant facts on the subjects, let us examine the relevant provisions of the latest Act to ascertain the object, meaning, purport and inter alia subject matter in dispute i.e. Section 3 of Act 2001 and in juxtaposition to the existing provision. Section 3 of Act 2001 reads as under: 3. Application :- (1) This Act shall extend to the whole of Bangladesh and also to the following: (a) any vehicle, vessel, aircraft or satellite; (b) any platform, rig or other structure that is flexed in the sea or attached to the submarine land;

Provided that if Bangladesh is a party to an international treaty, or an arrangement of similar nature in relation to a foreign vehicles, vessls, aircraft’s or satellites, this Act shall apply subject to such treaty or arrangement. (2) This Act shall not apply to the following:

(a) any broadcasting; (b) a radio broadcasting station or a television broadcasting station

or licensing or such station: (c) broadcasting apparatus or an apparatus for receiving any message or other information or a programme transmitted by way of broadcast, or the business of such apparatus; Provided that this Act shall apply to the following: (i) allocation of frequency for such radio station or television station or broadcasting apparatus, or control of the allocated frequency; (ii) use of a telecommunication apparatus in combination with broadcasting apparatus or use of telecommunication apparatus for the purpose of broadcasting

. 45. The said section contains both inclusion clause and exclusion clause togetherwith the proviso thereof.

46. In the inclusion clause i.e. section 3(1 )(a) and (b) regarding applicability of Act extending the same to the whole of Bangladesh and also to any vehicle, vessel, aircraft or Satellite, any platform, other structure that is fixed in the sea or attached to the submarine land. The proviso thereof is designed to include foreign vehicles, vessels, aircrafts and satellites by virtue of any treat or arrangement in which Bangladesh is a party to an international treaty or arrangement.

47. The exclusion clause in section 3(2) (a) (b) and (c) above is regarding inapplicability

of the Act to any broadcasting, a radio broadcasting station or a television station or licencing of such station broadcasting apparatus or an apparatus for receiving any message or other information or a programme transmitted by way of broadcast, or a business of such apparatus.

48. But the proviso thereto is designed to include specifically the applicability of the Act for allocation or frequency for such radio station or television station or broadcasting apparatus or control of allocated frequency, use of a telecommunication apparatus in combination with broadcasting apparatus or use of telecommunication apparatus for the purpose of broadcasting.

49. Broadcasting mentioned in section 3(2)(a) of ” the Bangladesh Telecommunication Act, 2001 has been defined meaning ” transmission of any message, information, signal, sound, image or intellectual expression by media wave, satellite, cable or optical fibre connection for the purpose of receipt by the public, but transmission of anything by internet connection shall not be deemed to be a broadcasting.”

50. Thus the Act is made applicable to the purposes it has spelt out clearly above as mentioned in the proviso in exclusion cla*use i.e. allocation of frequency etc. or use of a telecommunication apparatus etc. as detailed above. From the above, it is apparently clear that this Act is not applicable to any broadcasting etc. as detailed in clause 3(2) above.

51. The said provision thus in its clear meaning is not specifically made applicable to any matter relating to any broadcasting, radio broadcasting station, television broadcasting station or licensing of such station but when the question of allocation of frequency for such radio station or television station or broadcasting apparatus, or control of the allocated frequency or use of a telecommunication apparatus in combination with broadcasting apparatus or use of telecommunication apparatus for the purposeof broadcasting are concerned the Bangladesh Telecommunication Act, 2001 has been made to be applicable. The High Court Division, however, held that the Act shall apply in respect of broadcasting or in respect of licence required to broadcast television programme through satellite channel.

52. In this respect the provision of section 4 of theTelegraph Act, 1885 and section 5 of Wireless Telegraphy Act, 1933 are required to be considered. The Telegraph Act of 1885 has been enacted to amend the law relating to ‘telegraph’ in Bangladesh.

53. The Telegraph Act, 1885 provides in section 4 the exclusive privilege in respect of telegraphs and power to grant licences as under: 4. Exclusive Privilege in respect of telegraphs, and power to grant licenses.-(l) Within Bangladesh, the Government shall have the exclusive privilege of establishing, maintaining and working telegraphs: Provided that the Government may grant a license, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of Bangladesh. Provided further that the Government may by rules made under this Act and publish in the official Gazette, permit, subject to such restrictions and conditions as thinks fit. the establishment, maintenance and working

(a) of wireless telegraphs on ships within Bangladesh territorial waters and on aircraft within or above Bangladesh or Bangladesh territorial waters and (b) of telegraphs other than wireless telegraphs within any part of Bangladesh.

522 BTRC (2) vs Ekushey TV Ltd & Bangladesh (Mohammad Fazlul Karim J) HI ADC (2006) (2) The Government may, by notification in the official Gazette delegate to the telegraph authority all or any of its powers under the first proviso to sub section(l). The exercise by the telegraph authority of any power so delegated shall be subject to such restrictions and conditions as the Government may, by the notification, think fit to impose.

54. By section 3(1) ‘telegraph’ means an electric, galvanic or magnetic telegraph, and includes appliances and apparatus for making, transmitting or receiving telegraphic, telephonic or other communications by means of electricity, galvanism or magnetism.

55. Thus any broadcasting done through a broadcasting station or television broadcasting

station or broadcasting apparatus etc. as detailed in section 3(2) (a)(b) and c) of Act 2001 are for the means of establishing, maintaining and working of telegraph and the Government has such exclusive right and may grant licence on such condition in consideration of such payment to any person to establish, maintain or working “telegraph1 in Bangladesh.

56. To meet with situations arising out the advancement of technology in the filed of ‘telegraphy’ subsequently the Wireless Telegraphy Act, 1933 was promulgated to regulate the possession of wireless telegraphy apparatus and authorised the Director General, Bangladesh Post Office or officer authorised by him to issue licence to possess wireless telegraph apparatus on such condition as may be prescribed.

57. The Wireless Telegraphy Act, 1933 in section 5 thereof provides as under: 5. Licences :- (1) The Director General, Bangladesh Post Office, or an officer authorized by him in this behalf shall be the authority competent to issue licenses to possess wireless telegraphy apparatus under this Act, and may issue licenses in such manner, on such conditions and subject to such payments as may be prescribed. (2) Notwithstanding anything contained in section 4 of the Telegraph Act. I885(XIII of 1885), no licence under that Act shall be necessary for the possession of a television receiving apparatus for possessing which a licence issued under this Act is for the time being in force.

58. The wireless communication and wireless telegraphy apparatus have been defined in section 2(1) and 2(2) as under: (1) “wireless communication” means the making, transmitting or receiving of telegraphic, telephonic or other communications by means of electricity or magnetism without the use of wires or other continuous electrical conductors between the transmitting and the receiving apparatus: (2) “wireless telegraphy apparatus” means any apparatus, applicance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under section 10 to be wireless telegraphy apparatus, but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless

it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rue made under section 10 not to be wireless telegraphy apparatus.

59. From the above as well it is clear that the said Act authorises the Director General, Bangladesh Post Office or Officer authorised by him to issue license only to possess wireless telegraphy apparatus, on such conditions and subject to such payments as may be prescribed and hence noting to do with the object mentioned in section 3(2) of the Bangladesh Telecommunication Act. 2001.

60. The provision of section 4 of Telegraph Act, 1885 provides exclusive privilege of establishing, maintaining and working telegraphs by the Government, shall grant a license, on such conditions to any person to establish, maintain or work a “telegraph within any part of Bangladesh. The Government is, however, authorises by rules made under the act permit, subject to such restrictions and conditions as thinks fit, the establishment, maintenance and working of wireless telegraphs on ships within Bangladesh territorial waters and on aircraft within or above Bangladesh or Bangladesh territorial waters and of telegraphs other than wireless telegraphs within any part of Bangladesh.

61. Thus it is clear that the licnece is to be obtained for exercise of the privilege of establishment, maintaining and working telegraph on certain terms and conditions from the Government and the provision of Bangladesh Telecommunication Act, 2001 has also consciously and specifically excluded the provision of the said law regarding any broadcasting or a radio broadcasting station or licensing of such station, Broadcasting apparatus apparatus or an apparatus for receiving any message or other information or a programmee transmitted by way of broadcast, or the business of such apparatus. But the High Court Division has misconceived the said provision of law in holding that the Bangladesh Telecommunication Regulatory Commission is the exclusive authority to grant such license etc. mentioned above.

62. The efficacy, utility, applicability and requirement of a new legislation in the nature of Bangladesh Telecommunication Act, 2001 inspite of provision of section 4 of Telegraph Act and section 5 of Wireless Telegraphy act has been felt in a decision in the case reported in AIR 1995 SC 1236 (Supra) wherein it has been stated that the democracies in the different countries have enacted law specifically governing the various short falls in the broadcasting media as the country is lagging behind rooted in Telegraph Act, 1885 which are wholly inadequate and unsuited to an important media like radio, television, internet, satellite etc.

63. Such observation was made taking into consideration the situation when the Telegraph Act 1885 was enacted at a time when there was neither radio nor television not to speak of satellite, internet etc. Though radio and television fall within the definition of “telegraph” under the Telegraph Act, 1885 no other provision of the said Act appears to be relevant for the advancement/ development of the broadcasting media. It is absolutely essential to the interest of public and/ or freedom of speech and expression guaranteed by the Constitution with a view to avoid uncertainty and consequent litigation, steps should be taken to fill in the void by Act or law as the cases may arise to remedy the shortfall regarding broadcasting media both through radio and television.

64. Thus it is clear that, not only the intent, and objects of these legislation’s are different but the purpose of the same are distinct and has not overlapped each other.However, section 4 of the Bangladesh telecommunication Act, 2001 has also taken care of any possible conflict between these legislations for the sake of development and efficient regulation of telecommunication system and services by providing that in case of conflict with these two Acts, the provisions of Act 2001 shall apply.

65. Furthermore, section 5 thereof has also provided a non obstinate clause to guard against any possible overlapping situation upon establishment of an independent Commission in respect of development and efficient regulation of telecommunication

system and telecommunication services in Bangladesh and matters ancillary thereto. “Telecommunication system’ and ‘telecommunication service’ mentioned in the Act have been defined in the Act 2001 as under:” Telecommunication service” means any of the following services: (a) transmission or reception, with the help of a telecommunication system, of anything that falls within the purview of the ‘ definition of telecommunication;

(b) any value added telecommunication services (e.g. fax, voice mail, paging service);

(c) internet service: (d) supply of information or directory relating to a telecommunication system for the convenience of using a service mentioned in (a), (b) and (c) above; (e) a service for installation, or  maintenance of telecommunication apparatus, or a service relating to the adjustment , alteration, repair, moving or replacement of such apparatus.

“Telecommunication system” means a combination of the telecommunication apparatus (e,.g. witching system, transmission apparatus, terminal apparatus, satellite etc) whether or not these equipment’s are visibly connected with one another, or whether or not they are combinedly used in the transmission or reception of any information or message.

66. Dr. Kamal Hossain, the learned Counsel appearing for the respondents has, however, submitted that the provision of section 3 of sub section (2) and sections 31, 35, 36 ofand 55 the Bangladesh Telecommunication Act, 2001 should be read together to have a cohesive meaning which will lead to reasonable conclusion that it is not necessary to approach the Ministry for such licence, for section 36(2)(d) of the Bangladesh Telecommunication Act, 2001 makes it mandatory on the Commision which shall among others consider whether to issue license applied for.

67. Section 31 of the Bangladesh Telecommunication Act, 2001 provides for powers of the Commission whereby the Commission may subject to the Act and regulation exercise powers that are necessary to perform the functions and duties under section 30, inter alia, subject to payment of fees specified by the Commission in proper cases to issue licence for establishing or operating telecommunication system, or providing telecommunication

services or using of radio apparatus, and in proper cases to issue permits and technical acceptance certificates, to allocate radio frequency and to authorize the use thereof, to monitor the use of radio frequency and spectrum management, to renew, suspend and cancel the licences, permits and certificates issued and to control their transfer.

68. Section 6 of the Act has provided for establishment of Bangladesh Telecommunication Regulatory Commission providing powers and function and objects of the Commission detailed in section 29 thereof and function and duties of the Commission in section 30 thereof.

69. From the above two sections it appears that its sole object, function and duties are designed towards for the purpose of development and efficient regulation of telecommunication system and services in Bangladesh.

70. Since with the invention and setting up of the telecommunication system and services thereof i.e. transmission or reception, any value added Telecommunicytiop service (e.g. fax, voice, mail, paging service), internet service, supply of information or directory relating to a telecommunication system for the convenient use of the above, and a service for installation or maintenance of telecommunication apparatus or a service relating to the adjustment, alteration, repair, making or replacement of such apparatus with the help of telecommunication system as defined above.

71. Section 35 of the Act provides that no person shall without a licence establish or operate a telecommunication system in Bangladesh or undertake any construction work of such system or provide any telecommunication service inside or outside Bangladesh or undertake any construction work for providing internal service or install or operate any apparatus for such service.

72. Section 36 of the Act 2001 has given the Commission exclusive authority to issue license for activities mentioned in section 35(a) (b) and (c) thereof for establishing or operating a telecommunication system or to undertake any construction work on such system, to provide in Bangladesh or to any place outside Bangladesh any telecommunication service and to undertake any construction work for providing internet service or install or operate any apparatus fo such service

73. ections 33 and 34 detailed the functions of the Ministry and power of the Government respectively viz’-a-viz the power of the Commission detailed in section 30 of the Act 2001, which powers are designed to realise the objets of the Act 1 hereof. 74. Section 55(1) of Act 2001 provides that nobody shall without a ience establih, operate or use a radix) apparatus for the purpose of radio commnication in the land or territoial waters of Bangladesh or in the space above them nor shall use any radio frequency other than the frequency allocated by the Commission and section 55(2) provides that the Commission has the exclusive authority to issue licence and to allocate radio frequency. The aforesaid sections providing for licence and to establish, operate and use of a ratio apparatus for the

purpose of radio communication or use of a radio frequency, supports the proviso to section 3(2) of Act 2001 which provides that this Act shall apply to the allocation of frequency of such media station or television station or broadcasting apparatus or control of allocated frequency, use of a telecommunication apparatus in combination with broadcasting apparatus or use of telecommunication apparatus for the purpose of broadcasting.

75. Thus from the above, it is apparently clear that Bangladesh Telecommunication Act, 2001 has not been made applicable to any ‘broadcasting1, a radio broadcasting station or a television broadcasting station or licensing of such station, broadcasting apparatus or an apparatus for receiving any message or other information or a programme transmitted by

way of broadcast or the business of such apparatus, which job have been preserved to the Govt. of Bangladesh under the provisions of Telegraph Act. 1885 to provide for the issuance of license or no objection for the purposes inasmuch as the Wireless Telegraphy Act, 1933 regulates the possession of Wireless Telegraphy apparatus in Bangladesh by empowering the Director General, Bangladesh Post Office or an officer authorised by him to issue lecences for the purpose.

76. The intent, purpose and object of enacting B.T Act, 2001 is further apparent from the National Telecommunication Policy, i998, certain extract therefrom would be useful to clarify the situation. ” The telecommunications sector in Bangladesh has been characterized by a very low level of penetration, limited capability to meet the growing demand, low level of investment and old outdated systems and technologies necessitating

rcacetive remedial measures. In order to develop a national sound telecommunication infrastructure to support the economy and welfare of the country by providing telecommunication facilities on demand, assuring satisfactory quality of service and ensuring value to the customers, a sound National Telecommunication Policy is essential.” “The policy document, upholding the commitment of Government to resolve the prevailing shortcomings, outlines the objectives, strategies and other related aspects of telecommunications. The policy is formulated to ensure the orderly nd rapid growth of telecommunication service both in quality and quantity and the use of telecommunications technology in order to supportthe socio- economic development , in

line with the national aspiration.”

77. From the aforesaid, we are of the view that the High Court Division erroneously held that the Act 2001 is applicable in respect of all maters as mentioned in section 3 of the Act ancl BTRC is the sole and exclusive authority to grant such licence necesary for the purpose in the manner as provided in the Act nd no separate licence from the Ministry of Information would be 3(2) of the Act.

78. Each Act namely Bangladesh Telegraph Act 1885, Wireless Telegraphy Act 1933 and Bangladesh Telecommunication Act 2001 has been enacted for the separate, distinct and specified puiposes as detailed above and each Act has its own object, characteristics and specified filed of operation as have been spelled out in the respective preamble and the contents.

79. The application dated 6.5.2003 (Annxure -C) filed by the writ petitioner-respondent was for issuance of licence for broadcasting through the Satellite by the BTRC which has been allegedly refused by the Commission by letter dated 7.5.2003 on certain miscoceived notion arising out of the judgment of the review petitions before this Court. But subsequently it appears that the sa was withdrawn by the Commission on 26.06.2003. The Commission in their affidavit -in-opposition stated that the respondent No.3 could consider the application for allocation of frequency only when the delineated by section 3(2) of Bangladesh any substance in the submissions.

80. The learned Counsel for the respondents that the provisions mentioned above read toge lead to irresistible inference that the Bangladesh Telecomon Regulatory Commission is the authority to issue the licence for the purpose of section 3(2) of the Bangladesh Telecommunication Act, 2001 and the High Court Division erred in law in interpreting the said provisions and arriving at a conclusion that the Commission is authority to issue the lecense as sought for. The High Court Division has, however, taken into consideration a leter dated 1.2.2003 issued by the Ministry of Information to support the contention that the Ministry of Information is not the authority to issue the licence fo broadcasting. We have ourselves perused the said letter and are of the view that nowhere in the said letter itgives any hints or indication that the Ministry of Information is not the authority to issue the licence for broadcasting. On the contrary, it appears that the said letter has speled out the correct proposition of law regarding the provision of Bangladesh

81. Dr. Kama! Hossain towards the end of the hearing of the case has submitted that the Ministry of Information has issued the licence / no objection for broadcasting as desired by their application. The said issuing of licence by the Ministry of Information has ben done in compliance with the provision of law i .e the Telegraph Act, 1885 which is in consonance to the provision of section 3(2) of the Bangladesh Telecommunication Act, 2001. 82. From the above, it was made abundantly clear that the writ petitioner should

have first applied for licence or no objection for Broadcasting to the Ministry of Information and after obtaining the same then could approach the BTRC for alloca-‘ tion of frequency and other ancillary matters detailed above. The above position has further been apparent from the letter dated 19.2.2003 issued by the Commission giving permission to International Television (Private) Limited for using the frequency temporarily and also to import machineric’s for the purpose of Earth Station. This as borne by the letter dated 1..2003, was quoted in the impugned judgment, issued by the Ministry of Information clearly stating that the Ministry of Information only issues no-objection for Broadcasting. The question of permission for importation of apparatus and issuing of licence for allocation of freuency are within the jurisdiction of the BTR Commission under the provisions of the Bangladesh Telecommunication Act, 2001. Thus

BTRC is obliged under the law on an appropriate application for license etc. to be issued under the Bangladesh Telecommunication Act, 2001 to act in accordance with law.

83. Besides, there are various administrative agencies to the Executive Government to do the distinct and separate work or works entrusted to it under the various Acts, Their numbers are constantly increasing with the increasing assumption of new duties, obligations and responsibilities attaching the daily businesses of the citizens. The law in the filed governs these agencies, regulates their procedure, confers on them more and more powers, responsibilities and obligations. But the same is not one edged sword as the citizens are also expected to be responsible and accountable for smooth functioning of the system. 84. A welfare State has necessarily to undertake legislation on ever widening fronts, if the ultimate aim of a socialistic pattern of society with democratic aspiration operating within the domain of rule of law is to be evolved, realized and fulfilled through democratic process.

85. The agencies are entrusted with a power to do their duties and at times, are also entrusted to perform their obligations and the power of doing also includes exercisingdiscretion of not doing. But the duty discretion cannot be so performed as to attract the notice of the Court i.e. negligently, rashly or in any other mode as to render the action resulting in nugatory. The Court of law could intervene / interfere in administrative

actions where there has been failure of justice either in commission or in omission or in deliberate failure to perform a duty cast upon in taking the course of action prescribed. 86. Government is not a disembodies obstruction but a continuing process circumscribed by rule of procedure and business and its at any time th