Bangladesh Telecommunica­tion Regulatory Commission Vs. Ekushey Television Ltd., 58 DLR (AD) (2006) 83

Case No: Civil Appeal Nos. 383-384 with 385-387 of 2003

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Dr. Kamal Hossain,Fida M. Kamal,Mr. A. J. Mohammad Ali,Mr. Mvi. Md. Wahidullah,,

Citation: 58 DLR (AD) (2006) 83

Case Year: 2006

Appellant: Bangladesh Telecommunica­tion Regulatory Commission

Respondent: Ekushey Television Ltd.

Subject: Telecom,

Delivery Date: 2005-7-19

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Syed JR Mudassir Husain CJ
Md Fazlul Karim J
AK Chowdhury J
 
Bangladesh Telecommunica­tion Regulatory Commission
........................Appellant
Vs
Ekushey Television Ltd.
.........................Respondent
 
Judgment
July 19th, 2005
 
Bangladesh Telecommunication Act (XVIII of 2001)
Section 4
Section 4 of the Bangladesh Telecommunication Act has 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.              … (67)
 
Lawyers Involved:
Fida M Kamal, Senior Advocate, (MA Azim Khair, Advocate with him), instructed by Ahsanullah Patwary, Advocate-on-Record—For the Appellant (Civil Appeal No. 385 0f 2003).
AJ Mohammad Ali, Attorney-General (Adilur Rahman, Deputy Attorney-General with him), instructed by Sufia Khatun, Advocate-on-Record—For the Appellant (Civil Appeal Nos. 386-87 of 2003).
Rafique-ul-Huq, Senior Advocate, (A Hasib, Senior Advocate with him), instructed by Mvi. Md. Wahidullah, 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 by ASM Khalequzzaman, Advocate-on-Record—For the Respondent No. 1 (Civil Appeal Nos. 383, 385-387 of 2003) and Respondent No. 10. (Civil Appeal Nos. 384 of 2003).
Not represented—Respondent Nos. 2-5 (Civil Appeal Nos. 385-86 of 2003).
Not represented—Respondent No. 2 (Civil Appeal Nos. 387 of 2003).
Not represented—Respondent Nos. 1-9 (Civil Appeal No. 384 of 2003).
 
 
Civil Appeal Nos. 383-384 with 385-387 of 2003.
(From the judgment and order dated 28th August 2003 passed by the High Court Division in Writ Petition Nos. 4196 of 2003).
 
JUDGMENT
Md. 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 of 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 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 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 cohesive and workable meaning has to be given and in order to do that the provisions of the statute have to be read as a 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 a statute, namely, to intent the legislative to have meant what they have actually expressed." 
 
2. Writ petitions were filed challenging, 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 No. BTRC/Prosha-DO/2002/333(2) unlawfully rejected the writ-petitioner'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, "Our judgment will have no bearing in considering the application by Ekushey for licence 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-petitioner's application.
 
3.  The writ-respondent   No.2   Secretary, Ministry of Information Affairs contested the Rule 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 26-6-2003, the cause of action of the writ petition has become non-existent and the Rule has become infructuous.
 
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 29-5-2003 or at any time thereafter praying for allocating frequencies to broadcast its programme through satellite and terrestrial channel. It has further been stated that as no application 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 that an application was filed on 29-5-2003 has been termed as false.  It has further been stated that writ respondent No.3 is not the licensing authority for broadcasting television programme and, as such, over misconception of law the writ-petitioner is alleged to have filed an application for the licence although no such application was found after thorough 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 Nos. 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 2003 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-Charge in Tejgaon PS, however, filed Civil Appeal No. 387 of 2003 against the judgment and order dated 20-8-2003 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 No. 3428 of 2003. Mr. Nasir A Chowdhury also filed Civil Appeal No. 384 of 2003 against the judgment and order dated 20-8-2003 in Writ Petition No. 4196 of 2003.
 
7.  Mr. AJ Mohammad Ali, the learned Attorney-General appearing in Civil Appeal No. 386-387 of 2003 and Mr. Fida M Kamal, the learned Counsel appearing for the appellants in Civil Appeal No. 385 of 2003 and Mr. TH Khan, the learned Counsel appearing for BTRC, referring to the revisions of section 3 of the Bangladesh Telecommunication Act, 2001, specifically mentioning provisions of sub-section (2) thereof, have submitted that the Act is not applicable to any matter relating to any broadcasting, 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 a business of such apparatus and more so, when the law itself had specifically excluded any form of broadcasting or radio broadcasting or television broadcasting station as detailed above, the High Court Division committed a gross mistake and illegality in coming to the conclusion that the above Act shall apply in respect of broadcasting and in respect of licence required to broadcast television programmes through satellite channel.
 
8. 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, 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 programmes 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 wrong 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 the 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 a 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".
 
9. 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 a 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.
 
10. Dr Kamal Hossain, the learned Counsel appearing for the respondent No. 1 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 view 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 sections 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 7-6-2003 (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 of the writ petitioner's application was the result of a 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 petitioner's 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 authorised 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 Commission shall, among others, consider how far the issuance of the licence applied for will be consistent with the broad objectives of the Commission 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 petitioner's 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 Hossain 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 upto 100% of the overall share holding of the telecommunications operating company. The Government also under­took to make all endeavours 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 (electronic media) 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 petitioner's 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 as 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 petitioner's right to be treated equally with the other private broadcasting channels operating 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 legislations in the field vis-a-vis 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)."
 
18.  The Act is thus designed to amend the law relating to telegraph in Bangladesh.
The Preamble of the Wireless Telegraphy Act, 1933 is as under:
 
“An Act to regulate the possession of wireless telegraphy apparatus; 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 purpose of development and efficient regulation of the telecommunication system and telecommuni­cation services and ancillary thereto.”
 
19. The 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.
 
20. In interpreting the aforesaid preambles of the old Acts after the establishment of the BTRC by the Act of 2001 as 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.
 
21. Section 4 of the Telegraph Act, 1885 provides for issuance of a licence for the purpose of broadcasting its programme.
 
22. 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 have to be read as a whole and it is also to be kept in mind that by giving a narrow meaning of a part of the statute the whole object and aim of the statute 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 are to be resorted to by a person for the purpose of issuance of licence in respect of matter mentioned in 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.
 
23. 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 modem 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.
 
24.  In looking at the Preamble as an aid to interpretation of the Act, the cardinal principle 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 HRH Private Ernest Angestus of Henover 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".
 
25. 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 of an independent Commission for the purpose of development and efficient regulation of the telecommunication system and telecommuni­cation services and matters ancillary thereto.
 
26.  It is true that when the Acts of 1885 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 the Act of 2001.
 
27.  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.
 
28.  From the aforesaid preambles it appears that the object, intent and purpose of the three allied Acts are different and 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 falls 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 interest of the public, in the interest of the freedom of speech and expression guaranteed by Article 19(1)(a) and with a view to avoid confusion, uncertainty and consequent litigation that Parliament steps in 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."
 
29. 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, 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 rule made under section  10 not to be wireless telegraphy apparatus. "
 
30.  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.
 
31.  From the aforesaid intent, purpose 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.
 
32. 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.
 
33. 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 cover the situation henceforth not provided adequately in the previous Acts.
 
34. The Telegraph Act, 1885 has defined the "telegraph" meaning “an  electric,  galvanic  or magnetic telegraph, and includes appliances and apparatus for making, transmitting or receiving telegraphic, telephonic or other communication by means of electricity, galvanism or magnetism."
 
35. 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".
 
36. But the Act of 2001 has provided for the purpose of development and efficient regulation of telecommunication system 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 electro­chemical or electro-mechanical energy through cable, pipe, radio, optical fiber or other electro­magnetic or electro-chemical or electro- 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 equipments are visibly connected with one another, or whether or not they are combinedly   used in the transmission or reception of any information or message."
 
37. From a comparative study of the aforesaid terms provided in different legislations 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.
 
38. 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 law as it stands.
 
39. 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.
 
40. Lord Loredorn in the case of Vickers, Sons and Maxime Ltd vs Evano (1910) AC 444 held:
 
"We are not entitled to read words into an Act of Parliament, unless reasons for it are to be found within the four comers of the Act itself."
 
41.  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 vs Goold & Co (1910) AC 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."
 
42. The High Court Division with reference to later legislation has held that the Act of 2001 is the Act   providing   for issuance of licence for broadcasting.
43.  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 fairly and equally bound to a diverse meaning and in the words of Lord Denning in Payne vs 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."
 
44. In interpreting a later statute, the Court may call on 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.
 
45. 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.
 
46.  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, vessels, aircrafts 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 of 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.
 
47. The said section contains both inclusion clause and exclusion clause together with the proviso thereof.
 
48. 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 treaty or arrangement in which Bangladesh is a party to an international treaty or arrangement.
 
49. 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 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 a business of such apparatus.
 
50.  But the proviso thereto is designed to include specifically the applicability of the Act for allocation of 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.
 
51. 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 fiber connection for the purpose of receipt by the public, but transmission of anything by internet connection shall not be deemed to be a broadcasting."
 
52. Thus the Act is made applicable to the purposes it has spelt out clearly above as mentioned in the proviso in exclusion clause 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.
 
53. 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 purpose of 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.
 
54. In this respect the provision of section 4 of the Telegraph 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.
 
55. The Telegraph Act, 1885 provides in section 4 the exclusive privilege in respect of telegraphs and power to grant licenses as under:
 
4. Exclusive privilege in respect of telegraphs and power to grant licenses.— (1) Within Bangladesh, the Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:
Provided that the Government may grant a licence, 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 published 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.
(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 (1).
 
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.
 
56. 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.
 
57.  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 "telegraph" in Bangladesh.
 
58. To meet with situations arising out the advancement of technology in the field 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.
 
59.  The Wireless Telegraphy Act, 1933 in section 5 thereof provides as under:
 
5. Licenses.—(1) The Director-General, Bangladesh Post Office, or an officer authorised 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, 1885 (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.
 
60. 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, 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, 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 rule made under section 10 not to be wireless telegraphy apparatus.
 
61.  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 licence only to possess wireless telegraphy apparatus, on such conditions and subject to such payments as may be prescribed and hence nothing to do with the object mentioned in section 3(2) of the Bangladesh Telecommunication Act, 2001.
 
62. The provision of section 4 of Telegraph Act, 1885 provides exclusive privilege of establishing, maintaining and working telegraphs by the Government, shall grant a licence, on such conditions to any person to establish, maintain or work a telegraph within any part of Bangladesh. The Government is, however, authorised by rules made under the Act to 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.
 
63. Thus it is clear that the licence 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 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. 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 licence, etc mentioned above.
 
64. The efficacy, utility,  applicability  and requirement of a new legislation in the nature of Bangladesh Telecommunication Act, 2001 in spite 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 SC1236 (Supra) wherein it has been stated that the democracies in the different countries have enacted law specifically governing the various shortfalls in the broadcasting media as the country is lagging behind rooted in Telegraph Act,  1885 which is wholly inadequate and unsuited to an important media like radio, television, internet, satellite, etc.
 
65.  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.
 
66. Thus it is clear that, not only the intent, and objects of these legislations are different but the purpose of the same are distinct and has not overlapped each other.
 
67. 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.
 
68. Furthermore, section 5 thereof has also provided a non-obstante 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.
 
69. '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 service (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. switching system,   transmission apparatus, terminal apparatus, satellite, etc) whether or not these equipments are visibly-connected with one another, or whether or not they are combinedly used in the transmission or reception of any information or message.”
 
70. Dr Kamal Hossain, the learned Counsel appearing  for the  respondents, has, however, submitted that the provision of section 3 of sub­section (2) and sections 31, 35, 36 and 55 of 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 Commission which shall, among others, consider whether to issue licence applied for.
 
71. 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 authorise the use thereof, to monitor the use of radio frequency and spectrum management, to renew, suspend and  cancel the licenses, permits and certificates issued and to control their transfer.
 
72. 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.
 
73. From the above two sections it appears that its sole object, function and duties are designed towards and for the purpose of development and efficient regulation of telecommunication system and services in Bangladesh.
 
74. Since with the invention and setting up of the telecommunication system and services thereof i.e. transmission or reception, any value added telecommunication 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.
 
75. 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.
 
76. Section 36 of the Act 2001 has given the Commission exclusive authority to issue licence 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 for such service.
 
77.  Sections 33 and 34 detailed the functions of the Ministry and power of the Government respectively vis-a-vis the power of the Commission detailed in section 30 of the Act 2001, which powers are designed to realise the objects of the Act thereof.
 
78. Section 55(1) of Act 2001 provides that nobody shall without a licence establish, operate or use a radio apparatus for the purpose of radio communication in the land or territorial 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.
 
79. Thus, from the above, it is apparently clear that Bangladesh Telecommunication Act, 2001 has not been made applicable to any 'broadcasting', 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 licence 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 licenses for the purpose.
 
80. The intent, purpose and object of enacting BT Act, 2001 is further apparent from the National Telecommunication Policy, 1998, and certain extract therefrom would be useful to clarify the situation.
 
"The telecommunications sector in Bangladesh has been characterised 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 reactive 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 and rapid growth of telecommu­nication service both in quality and quantity and the use of telecommunications technology in order to support the socio-economic development, in line with the national aspiration”.
 
81. 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 matters as mentioned in section 3 of the Act and 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(2) of the Act.
 
82. 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 purposes as detailed above and each Act has its own object, characteristics and   specified field of operation as have been spelled out in the respective preamble and the contents.
 
83. The application dated 6-5-2003 (Annexure-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 misconceived notion arising out of the judgment of the review petitions before this withdrawn by the Commission on 26-6-2003. The Commission in their affidavit-in-opposition stated that the respondent No. 3 could consider the application for allocation of frequency only when the writ petitioner was granted a licence for broadcasting by the Ministry of Information as clearly delineated by section 3(2) of Bangladesh Telecommunication Act, 2001.
 
84. Thus, from the above, we do not find any substance in the submissions of the learned Counsel for the respondents that the provisions mentioned above read together lead to irresistible inference that the Bangladesh Telecommunication 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 the authority to issue the licence as sought for. The High Court Division has, however, taken into consideration a letter 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 for broadcasting. We have ourselves perused the said letter and are of the view that nowhere in the said letter it gives 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 spelled out the correct proposition of law regarding the provision of Bangladesh Telecommunication Act, 2001.
 
85. Dr Kamal 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 been 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.
 
86. 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 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. This as borne by the letter dated 1-2-2003, 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 frequency 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 licence, etc. to be issued under the Bangladesh Telecom­munication Act, 2001, to act in accordance with law.
 
87.  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 to daily businesses of the citizens. The law in the field governs these agencies, regulates their procedure, and 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.
 
88.  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.
 
89. 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 exercising discretion 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 being 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 them in taking the course of action prescribed.
 
90. Government is not a disembodied obstruction but a continuing process circumscribed by rule of procedure and business and it is at any time the person who mans it. A Government is of 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.
 
91. The writ petition has been originated due to rush and hasty decision in Annexure-C-1 issued without due application of mind as to the provisions of law possibly through inadvertence which they subsequently have withdrawn. It is the duty of executive agencies to be mindful about the performance of any duty/action so as to avoid any possible prejudice.
 
92. The exercises in the instant case, from its start can best be styled as a ‘tragedy of errors’ played by both the parties i.e.  not filing an appropriate application in a prescribed form to the appropriate authority for the appropriate relief and the BTR Commission, in like manner, replying without prescribing appropriate measure and after a long duel the same has ended in a comedy when the Ministry of Information ultimately issued "no objection" for broadcasting meanwhile during the pendency of litigation as has been submitted by the learned Counsel for the appellants.

For the reasons aforesaid, with the above observations the appeals are, accordingly, allowed without any order as to costs. The impugned judgment and orders of the High Court Division are hereby set aside.
 
Ed.