Case No: Civil Petition for Leave to Appeal Nos. 767 & 993 of 2005
Judge: M. M. Ruhul Amin ,
Court: Appellate Division ,,
Advocate: Mr. Mvi. Md. Wahidullah,Mr. A.S.M. Khalequzzaman,,
Citation: 28 BLD (AD) (2008) 121
Case Year: 2008
Appellant: Government of Bangladesh
Respondent: Jamuna Television Ltd.
Delivery Date: 2008-8-30
Md. Ruhul Amin, CJ.
M.M. Ruhul Amin, J.
Md. Tafazzul Islam, J.
Md. Abdul Matin, J.
Ministry of Information, Represented by its Secretary, Government of Bangladesh & Others
…………………. Petitioners (In Civil Petition No. 767 of 2005)
The Bangladesh Telecommunication Regulatory Commission Represented by its Chairman
…………………. Petitioners (In Civil Petition No. 993 of 2005)
Jamuna Television Limited & Others
…………............Respondents (In both the cases)
April 30, 2008.
Bangladesh Telecommunication Act 2001
Only the Commission (BTRC) may suspend or cancel a licence after serving a notice specifying the reasons for cancellation of the licence.
A.S.M. Khalequzzaman, Advocate-on-Record-For the Petitioners (In Civil Petition No. 767 of 2005).
T.H. Khan, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For the petitioner (In Civil Petition No. 993 of 2005).
Rafique-Ul-Huq, Senior Advocate (Ahsanul Karim, Advocate with him) instructed by Md. Wahidullah, Advocate-on-Record-For Respondent Nos. 1-2 (In both the cases).
Not represented-Respondent Nos. 3-5 (In Civil Petition No. 993 of 2005).
Civil Petition for Leave to Appeal Nos. 767 & 993 of 2005.
(From the judgment and order dated 16.05.2005 passed by the High Court Division in Writ Petition No. 4600 of 2004).
These petitions, one by the Ministry of Information and another by the Bangladesh Telecommunication Regulatory Commission, for leave to appeal are directed against the judgment and order dated 16.05.2005 passed by the High Court Division in Writ Petition No. 4600 of 2004 making the Rule absolute.
2. Short facts are that the respondent No.1, Jamuna Television Limited is a Private Limited Company which was duly incorporated under the Companies Act, 1994 for the purposes, inter alia, of operating private television channels in Bangladesh and telecasting of programmes. The JTV, on 23.11.2001 submitted a proposal to the Ministry of Information, the Government of Bangladesh for setting up and operating both terrestrial and satellite television channels. Upon the application, the Ministry on 05.02.2002 granted a 'No Objection Certificate' in short, NOC to the JTV for opening and operating countrywide terrestrial and satellite television telecasting and broadcasting in the UHF band under their own management. In the meantime, the Bangladesh Telecommunication Act, 2001 (shortly the Act) came into force on 31.01.2001 and on the very date of commencement of the Act, a Commission known as the Bangladesh Telecommunication Regulatory Commission was established and all powers, functions and authorities that were being exercised by the Post and Telecommunication Ministry relating to the telecommunication system including granting of licence for establishment of such system, permission for import of telecommunication equipments and allocation of necessary frequency etc. all vested in the Commission.
3. The JTV applied to the Commission for licence for establishment of their telecommunication system and import of necessary equipments and also for allocation of necessary frequency. The Commission issued a demand note for payment of Tk.14,950/-as process fee. JTV deposited the said amount. Thereafter, JTV also addressed a letter to the Chairman of the Spectrum Management Committees for the purpose of management of radio frequency. By a letter dated 16.05.2002 the said Committee requested the Company to submit a frequency survey report and frequency plan of the JTV. By a letter dated 1905.2002 the JTV furnished frequency spectrum proposal, the technical information of equipments and a coverage map to the Commission. There were several communications but neither the Commission nor the Committee did accord the licence or allocate frequency. The JTV then sent a notice to the Commission and the Committee demanding justice but received no favourable response. Thereafter, the JTV filed Writ Petition No.7999 of 2002 for a direction for according necessary licence and allocation of frequency. The Rule was made absolute in the writ petition and the respondents were directed to dispose of the application of the JTV dated 13.02.2002 within 30 days of receipt of that order. Against the decision, the Ministry and the Commission made two petitions for Leave to Appeal being Civil Petition Nos.1253 and 1356 of 2003 respectively before the Appellate Division. By an order dated 25.10.2003 the Appellate Division dismissed both the petitions and directed the respondents again to dispose of pending applications as early as possible. As the respondents did nothing pursuant to said order of the Appellate Division, the petitioner addressed number of letters to the respondents for disposing of their application dated 13.02.2002. Then on 14.01.2004 the JTV filed a contempt petition in the Appellate Division. The Commission moved a petition before the Appellate Division for review of the judgment and order dated 25.10.2003. By another order dated 19.01.2004, the Appellate Division dismissed the review petition. On 10.03.2004 the Commission granted a licence to the JTV for establishment of telecommunication system and import of equipments and allocation of necessary frequency. The Committee also issued a demand note for depositing Tk. 54,01,01,300/-. The JTV deposited Tk. 1,00,000/- as fee for establishment of a satellite station (Earth) and Tk.1,300/- as licence fees for 13 stations (one satellite and twelve terrestrial). By a letter, the JTV also requested the Commission to amend the demand note by fixing lawful charges for four channels which were granted. Thereafter, the JTV received impugned letter dated 22.03.2004 issued by the Ministry of Information, which directed the JTV to stop setting up telecommunication system and broadcasting of the programmes. The petitioner also received impugned letter dated 08.04.2004 issued by and on behalf of the Commission canceling the licence for failing to deposit the entire money as demanded within the time fixed.
4. The respondent No. 2, Ministry of Information, contested the Rule by affidavit-in-opposition stating, inter alia, that the JTV had no locus standi to move this Division and the writ petition was accordingly liable to be dismissed as not maintainable. It is further stated that the JTV failed to start broadcasting within one year of the date granting NOC and to obtain a valid licence for establishment and operation of a telecommunication system as per requirements of the law, the Ministry of Information had to issue the letter with full lawful authority. It is further stated that the NOC had lost the legal basis, if any, after the stipulated time.
5. The respondent Nos. 3 and 4 Bangladesh Telecommunication Regulatory Commission, jointly contested the Rule by filing an affidavit-in-opposition stating, inter alia, that the NOC was not a licence granted by the Ministry of Information nor a 'No Objection Certificate' for satellite and terrestrial channels whereas the licence is required to establish and operate the telecommunication system and the NOC cannot be treated as a substitute for the licence. The Ministry of Information has not yet granted any licence to the JTV. The further case is that the Commission is an independent statutory body and is not bound to grant allocation of frequency and licence until and unless the JTV obtained from the Ministry of Information necessary licence. The NOC granted cannot be considered as a licence for TV broadcasting in the true sense. The commission fixed the frequency fees, charges etc., as per its guideline. The Commission was given full power to fix the charge, fees, levy etc. The JTV paid Tk. 1,01,300/- against the total demand of Tk. 54,01,01,300/- just to suit its own convenience. The further case is that JTV did not accept the offer by depositing entire fees and charges as was assessed in the demand note dated 10.03.2004. Since the JTV did not accept the offer of the Commission and there was no relationship of licensor and licensee established between the parties.
6. In reply to the aforesaid affidavits of said respondent Nos. 2, 3 and 4, the JTV filed an affidavit-in-reply stating, inter alia, that the Commission and the Committee having allocated frequency and accorded necessary licence on the basis of the NOC they are now estopped from raising the plea that the JTV had no licence to operate. The said NOC for all purpose must be deemed to be a licence. The further case is that the Ministry of Information does never provide any formal licence for broadcasting and all other private television channels in Bangladesh have been broadcasting and telecasting their programmes on the basis of a NOC given by the Ministry of Information.
7. The JTV also filed a supplementary affidavit annexing a copy of the letter issued by the Commission to the International Television Company Limited (NTV) dated 12.02.2003 granting permission/allocation of frequency on temporary basis. The Commission gave allocation of frequency/ permission on the basis of a NOC given by the Ministry of Information. The further case is that NTV Limited vide its letter dated 01.03.2003 in compliance with the said Memo dated 19.02.2003 imported equipments to set up television channel and sought for a NOC for releasing of the equipments from the Zia International Airport, Dhaka. The Commission accordingly vide its letter dated 01.06.2003 accorded an inspection certificate. The Commission granted permission for using Uplink Downlink Satellite Earth Station (UDSES)/ Satellite News Gathering (SNG) and also allocation of frequency for satellite broadcasting.
8. We have heard Mr. A.S.M. Khalequzzaman, the learned Advocate-on-Record for the petitioners in C.P. No. 767 of 2005 and Mr. T.H. Khan, the learned Counsel for the petitioner in C.P. No. 993 of 2005 and Mr. Rafique-Ul-Huq, the learned Counsel for respondent Nos.1-2 in both the cases and perused the judgment of the High Court Division and other connected papers on record.
9. It is not disputed that by Annexure-B dated 05.02.2002 (in C.P. No. 767 of 2005) the Ministry of Information issued 'No Objection Certificate' to the JTV to start broadcasting in terrestrial and satellite systems. By Annexure-J dated 10.03.2004 Bangladesh Telecommunication Regulatory Commission temporarily allocated the frequency and also granted permission to the petitioner for importing necessary equipments and machinery for the purpose. By Annexure J(1) dated 10.03.2004 the BTRC issued demand note dated 10.03.2004 for Tk.54,01,01,300/- to be deposited by the petitioner within 15 days. It is also not disputed that out of the amount demanded a sum of Tk. 1,00,000/- as fees for satellite system, and an amount of Tk. 1300/- as licence fee were deposited but an amount of Tk.54,00,00,000/- as fee for terrestrial system was not deposited.
10. From the judgment of the High Court Division, it is clear that the JTV requested the Commission in writing for reconsideration of the charges for use of frequencies for twelve terrestrial stations.
11. Mr. Huq, the learned Counsel for the petitioner submits that they have abandoned their claim for terrestrial system and accordingly deposited the amount for satellite system only. He further submits, that subsequently the authority made law making provision for exclusive use of terrestrial system by the BTV only and not by any Private TV channel and therefore his claim for terrestrial system is no longer valid and as such no deposit was made for terrestrial-system. It is in the judgment of the High Court Division that at the time of hearing of the Writ Petition, the Writ Petitioner did not press for decision as to terrestrial stations.
12. The Commission issued the impugned orders mainly on the ground that the JTV did not deposit the total amount of money demanded by demand note dated 10.03.2004. Mr. Huq submits that under the law the petitioner is not entitled to use terrestrial system as a private Television channel and is only entitled to use satellite system and the petitioner had already deposited necessary fees for satellite system and as such the impugned orders are bad in law being issued without application of mind.
13. It is to be noted that the High Court Division in the judgment dwelt at length on the grant and cancellation of licence of the petitioner but in fact we find that neither Annexure-B nor J(1) as discussed above is a licence. One is temporary allocation of frequency and permission to import equipments and machinery by the B.T.R.C. and the other is N.O.C. by the Ministry of Information.
14. Mr. Khan submits that the petitioner is required to obtain licence for the purpose of satellite system also and under Section 36 of the Bangladesh Telecommunications Act,2001, the Bangladesh Telecommunications Regulatory Commission has the exclusive authority to issue such licence.
15. In reply Mr. Huq submits that the petitioner is always ready to obtain licence and definitely the petitioner will obtain licence after complying with necessary formalities in due course of time and the authority also would act according to law in granting licence.
16. Mr. Huq further submits that under section 46 of Bangladesh Telecommunications Act, 2001 only the Commission (BTRC) may suspend or cancel a licence after serving a notice specifying the reasons for cancellation of the licence.
17. Thus from our above discussions, we find that B.T.R.C. temporarily allocated frequency and also granted permission for import of necessary machinery and equipments to the petitioner and this temporarily permission for import of machinery and equipments was to remain valid upto 31.12.2004 but long before the expiry of the stipulated period the permission was revoked and before such revocation no show cause notice was served upon the petitioner. It was the definite case of the writ-petitioner that in the light of the action of the BTRC i.e. allocation of frequency & granting permission for importing machinery, he made huge investment. This assertion of the writ petitioner was not specifically denied by the contesting writ Respondents. The petitioner's prayer for reconsideration of charges for terrestrial system was also not considered although the petitioner has abandoned the claim for terrestrial system.
In the facts and circumstances of the case and in view of the discussions made above, both the leave petitions are dismissed.