MGH Infocomm Ltd. Vs. Bangladesh, represented by Secretary, Ministry of Information, 59 DLR (2007) 131

Case No: Writ Petition No. 3535 of 2005

Judge: Syed Refaat Ahmed,

Court: High Court Division,,

Advocate: MR. Shamsul Hoque Siddique,,

Citation: 59 DLR (2007) 131

Case Year: 2007

Appellant: MGH Infocomm Ltd.

Respondent: Government of Bangladesh

Subject: Telecom,

Delivery Date: 2006-12-14


Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Salma Masud Chdwdhury J
Syed Refaat Ahmed J
 
MGH Infocomm Ltd.
......................................Petitioner
Vs.
Bangladesh, represented by Secretary, Ministry of Information
…………………….....Respondent
 
Judgment
December 14, 2006.
 
Cable Television Network Regulation, 2006
Regulations 4 & 5
Constitution of Bangladesh, 1972
Articles 27 & 102 (2)(a)(i)
The delay and inaction as witnessed in this case suggests the presence of arbitrariness, especially when one considers the fact that an overriding presumption of government action is that it is normally hedged by conditions of reasonableness, fair play and public interest.
 
Cases Referred To-
R Tower Hamlets London BC ex p Kayene Lavenson [1975] QB 431, R v London CC ex p Corrie, [1918] 1 KB 68.
 
Lawyers involved:
Ms Sarwat Siraj, Advocate—For the Petitioner.
Shamsul Hoque, Assistant Attorney-General—For the Respondent.
 
Writ Petition No. 3535 of 2005.
 
JUDGMENT
 
Syed Refaat Ahmed J.
 
1. In this Application under Article 102 of the Constitution a Rule Nisi was issued calling upon the respondent to show cause as to why the respondent should not be direct to grant/issue a "No Objection Certificate" and give registration in favour of the petitioner to allow the petitioner to broadcast, import programmes of STAR channels and to act as a distributor of foreign channels in Bangladesh or such other or further order or orders passed as to this Court may seem fit and proper.
 
2. The petitioner is a private limited company incorporated under the Companies Act, 1994 to operate as a distributor of foreign channels. It is in the course of that business that the petitioner entered into a Distribution Agreement on 1-7-2004 with Asian Broadcasting FZ-LLC, a Dubai-based Company, to operate as the latter's licensee and distributor in Bangladesh with a view to operate STAR channels in Bangladesh for a period of three years (Annexure-'A').
 
3. The facts and issues as arise in this Appli­cation straddle a total of three policy and statutory regimes as have been in place from 2001 onwards. At the time that the Petitioner Company (here­inafter referred to as the "Petitioner") embarked upon its operation as a distributor in Bangladesh in 2004 the legal and administrative regime in this area was being governed by the "কেবল টেলিভিশন নেটওয়ার্ক নীতিমালা, ২০০১" (hereinafter referred to as "Niti­mala") (Annexure -'B'). The regulatory framework under the Nitimala made it necessary for a "No Objection Certificate" ("NOC") as well as requisite registration for broadcasting to be secured by any distributor as a prerequisite to setting up operations in Bangladesh. In adherence to such requirements the petitioner duly addressed an application to the respondent, Ministry of Information on 29-6-2004 praying for an issuance of the necessary NOC (Annexure 'C'). It is apparent from this application that this marked the beginning of an unduly protracted exercise of futile attempts on the part of the petitioner to petition the respondent Ministry for the issuance of the NOC. These futile attempts are evident, for example, in the petitioner's repeated communications dated 8-7-2004 (Annexure-'D'), 22-7-2004 (Annexure-'E') and 31-7-2004 (Anne­xure 'E(1)'). Concurrent to pursuing the respondent Ministry regarding the issuance of the NOC the petitioner, both by reason of its operational exigencies as well as its contractual commitments under the Distribution Agreement in Annexure 'A', took prudent steps to equip itself with all requisite regulatory trade permissions and certifications equally necessary for it to readily go into operation upon the expected issuance of the NOC. In that process the petitioner obtained a trade licence from the Dhaka City Corporation (Annexure-'F'), got itself registered with the VAT authority (Annexure 'F(1)', and also obtained a certificate from the Government Bureau of Imports and Exports (Annexure-T(2)', and also in keeping with the requirements as otherwise enumerated in Clause 4(1) of the Nitimala. The petitioner remained equ­ally compliant with the other requirements of the Nitimala in not only furnishing its Tax Identification Number on 23-6-2006 (Annexure-'G'), a Bank Solvency Certificate (Annexure-'G(1)') and Trade Licence (Annexure 'F') in support of its application to the respondent, but also significantly by furnishing a Bank Guarantee of Taka 5,00,000 dated 10-7-2004 issued by Bank Asia Limited with a validity period of three years from the date of issuance (Annexure-'M' to the petitioner's Supple­mentary Affidavit dated 14-12-2006). Additionally, the petitioner having taken care to register itself with the Board of Investment ("BOI"), the application for such registration having been filed as early as on 3-7-2004 and the certification having eventually come through on 22-8-2005, such certi­ficate, as is evident in Annexure 'L' to the Supple­mentary Affidavit dated 30-11-2006, duly identi­fying the petitioner's area of operation and showing a total of Taka 18.2 million in capital and assets with a machinery and equipment component of Taka 7.2 million was submitted before the respondent Ministry in due course.
 
4. It is against this backdrop that this Court further notes that the initial application for NOC, the non-consideration of which constitutes the premise for the issuance of this Rule, has been met with inertia and inaction from the respondent over a period of two years or more, a period that has conco­mitantly witnessed certain significant developments both in terms of a legislative enactment bearing on the matter at hand as well as of active judicial inter-vention spurring consequential positive action benefiting the petitioner by an otherwise recalcitrant respondent. In this regard it is noted that the definitive legislative exercise, except for an intervening period between 2005 and 2006, has witnessed the formulation of yet another set of guidelines entitled the "কেবল টেলিভিশন নেটওয়ার্ক নীতিমালা, ২০০৫" (herein-after referred to as the "Nitimala, 2005") is manifested in the enactment of the "কেবল টেলিভিশন নেটওয়ার্ক নীতিমালা, ২০০৬" (hereinafter referred to as the 'Act') as was published in the Bangladesh Gazette on 24-9-2006. It is contended that the peti­tioner's grievance that arose under the Nitimala regime, however, continued unabated under that introduced by the Act in terms of the continued and persistent reluctance of the respondent to actively consider and dispose of the application for the requisite certification. This Application, read with two Supplementary Affidavits, shows that the requirement of the issuance of the NOC under the Nitimala came to be supplemented by the require­ment of obtaining a licence under the Act without, however, altering either the legal and administrative basis or purpose served now by obtaining a licence in lieu of the earlier requirement of a NOC. It is in this context that the petitioner's grievance stems from a composite premise constructed both by ele­ments and issues permeating both regimes arising under the Nitimala as well as the Act. It is submit­ted that the regulatory frameworks under both these regimes, the commonalities thereof, and the pre­judicial treatment meted out to the petitioner denying it the essential benefits of either of these regimes are, therefore, to be seen by this Court as being bound by elements of continuity and linkage. That linkage, it is submitted further, is well recognised in section 4(2) of the Act itself as entitles a pre-existing licence holder to the issuance of a fresh licence upon fulfilment of certain require­ments as to an application made to that effect within the time frame specified in that section. It is stated that the application of 17-10-2006 represents such an application made under the Act in an effort to comply with the statutory requirements necessary for obtaining a fresh licence (Annexure 'K' to the Supplementary Affidavit dated 30-11 -2006). Atten­tion is drawn in this regard to section 5 of the Act that sets the time limits within which the respondent in the facts and circumstances of this case should have arrived at a decision either way on the peti­tioner's application and that by any standard those periods should be considered as having long expired.
 
5. The petitioner has at this juncture elabo­rated on the factual sub-text on which the said appli­cation dated 17-10-2006 is said to proceed. Information and material made available to this Court at the time of the hearing reveals that in the face of such administrative inertia this Court had on one instance played the substitutional role of a surrogate in Writ Petition No. 3919 of 2006 where faced with similar circumstances this Court deemed it pertinent at the time of the issuance of the Rule in that case to direct the respondents to "consider" the present petitioner's application for the issuance of a "NOC or licence" under the Nitimala as was then current. It is shown further, that such direction yielded beneficial results for the petitioner in that case in the form of a NOC issued on 4-6-2006 bearing particular reference to the order by this Court in Writ Petition No. 3919 of 2006 pertaining to three specific channels as constituted the subject matter of that Writ Petition (Annexure 'P' to the Supplementary Affidavit dated 4-12-2006). It is further evident that consequentially the petitioner also became the beneficiary of a 'Distributor Licence' dated 7-6-2006 issued under the Nitimala, 2005 and valid till 30-6-2007 governing the petitioner's operations with those three specific channels (Annexure 'Q' to the Supplementary Affidavit dated 14-12-2006). That licence proactively also subjected the petitioner licensee to compliance with all future relevant law and guide­lines. Incidentally, with the legislative development on 24-9-2006 manifested in the enactment of the Act (Annexure 'J' to the Supplementary Affidavit dated 30-11-2006) at a time well within the validity period of the licence issued on 7-6-2006, the petitioner in adherence to the requirement of section 4(2) of the Act and equipped in its newly acquired status of an existing licensee on the date that the Act first came into effect, duly and within the period stipulated in section 4(2), submitted the above referred application for issuance of a fresh licence on 17-10-2006 (Annexure 'K' to the Supplementary Affidavit dated 30-11-2006) with regard to channels for which no NOC had been issued to the petitioner despite numerous applications to that effect under the Nitimala. It is now the petitioner's grievance that the inordinate delay in disposing of that application, preferably with a favourable outcome as is stated by the petitioner to be its legitimate expectation, the respondent, in a glaring example of high-handedness, has failed to discharge its duties in accordance with law.
 
6. It is stated that the application for a fresh licence dated 17-10-2006 pertains to a large number of channels and that on account of business, operational and contractual exigencies the petitioner was compelled to go into operation from 1-7-2004 at a time when its application for the requisite regulatory permission in the form of a NOC under the Nitimala was pending. It is stated that at that time the petitioner nevertheless apprehended that the respondent would at any time prevent the petitioner from so operating. This constituted the basis for a prayer to be made in this Application that along with the issuance of the Rule a direction be also made for the respondent to maintain status quo in respect of broadcasting and operation of STAR channels in Bangladesh. In yet another instance of the substitutive role played by the judiciary favouring the petitioner, that prayer was granted on 25-5-2005 for a period of three months with an eventual order given on 3-8-2006 for the status quo to be maintained till the disposal of this Rule.
 
7. It is now the petitioner's prayer that in keeping with the terms of the Rule as is submitted as falling well within the purview of the legislative intent and objective of the Act, and consistent with the spirit reflected in this Court's direction to maintain status quo allowing the petitioner to continue its distribution activities under the regime as was current at the time that this Rule was issued and the direction made, that the Rule be made absolute by the Court. It is also prayed that as a corollary to that it would also be necessary by this Court to consider the manner in which the respondent has dealt with the petitioner's various applications since 2004 in general and the application dated 17-10-2006 in particular.
 
8. Heard the learned Advocate for the petitioner, the learned Assistant Attorney-General, perused the Application as well as the two Supplementary Affidavits filed on behalf of the petitioner. This Court notes that no Affidavit-in-Opposition has been filed in this case.
 
9. This Court has at the outset taken note that the crux of this case has to do with the duty to exercise discretion as is implicit in the grant of power earlier under the Nitimala and now under the Act to the respondent to consider and dispose of application for NOCs/registration/licences. In that regard, it would be pertinent to refer to the relevant provisions of sections 4 and 5 of the Act as read thus:
 
৪। লাইসেন্স-- (১) এই আইনের অধীন লাইসেন্সপ্রাপ্ত না হইয়া কোন ব্যক্তি ডিসট্রিবিউটর বা সেবাপ্রদানকারী হিসাবে কার্যক্রম পরিচালনা করিতে পারিবে না৷
(২) এই আইন বলবত্ হইবার পূর্বে কোন ব্যক্তি ডিসট্রিবিউটর বা সেবাপ্রদানকারী হিসাবে কার্যক্রম পরিচালনার জন্য লাইসেন্স প্রাপ্ত হইয়া থাকিলে উক্ত আইন বলবত্ হইবার অনধিক ৩০ (ত্রিশ) দিনের মধ্যে তদ্‌কর্তৃক লাইসেন্সিং কর্তৃপক্ষের নিকট লাইসেন্সের জন্য ধারা ৫ এর বিধান অনুসারে পুনরায় আবেদনপত্র দাখিল করিতে হইবে৷
(৩) লাইসেন্সিং কর্তৃপক্ষ কর্তৃক উপ-ধারা (২) এর অধীন দাখিলকৃত আবেদনপত্র আগ্রাহ্য বা প্রত্যাখ্যাত না হওয়া পর্যন্ত আবেদনকারী তাহার কার্যক্রম পরিচালনা অব্যাহত রাখিতে পারিবে৷

(৪) উপ-ধারা (২) এর অধীন নির্ধারিত সময়ের মধ্যে কোন ডিসট্রিবিউটর বা সেবাপ্রদানকারী কর্তৃক পূনরায় লাইসেন্সের জন্য আবেদনপত্র দাখিল করা না হইলে উক্ত নির্ধারিত সময় অতিক্রান্ত হইবার সংগে সংগে তদ্‌বরাবরে প্রদত্ত বা ইস্যুকৃত লাইসেন্স বাতিল হইয়াছে বলিয়া গণ্য হইবে৷
(৫)এই আইনের অধীনে লাইসেন্সপ্রাপ্ত না হইলে কোন ব্যক্তি ডি. টি. এইচ বা এম. এম. ডি. এস টার্মিনাল স্থাপন, ব্যবহার, বিপণন ও সঞ্চালন করিতে পারিবে না৷

5 | লাইসেন্স প্রদান পদ্ধতি---৫৷ (১) ডিসট্রিবিউটর এবং সেবাপ্রদানকারী হিসাবে কার্যক্রম পরিচালনা করিতে ইচ্ছুক ব্যক্তিকে লাইসেন্সের জন্য লাইসেন্সিং কর্তৃপক্ষের নিকট নির্ধারিত ফরম অনুসারে আবেদনপত্র দাখিল করিতে হইবে এবং আবেদনপত্রের সাথে নির্ধারিত লাইসেন্স ফি জমা দিতে হইবে৷
(২) উপ-ধারা (১) এর অধীন আবেদনপত্র প্রাপ্তির পর লাইসেন্সিং কর্তৃপক্ষ আবেদনপত্রের সাথে দাখিলীয় সকল তথ্যাদির সঠিকতা সম্পর্কে নিশ্চিত হইবে৷
(৩) লাইসেন্সিং কর্তৃপক্ষ-
(ক) সেবাপ্রদানকারী কর্তৃক আবেদনপত্র দাখিল হইবার অনধিক ৩০ (ত্রিশ) দিনের মধ্যে সেবাপ্রদানকারী বরাবরে; এবং
(খ) ডিসট্রিবিউটর কর্তৃক আবেদনপত্র দাখিল হইবার পর উহা অনতিবিলম্বে সরকারের নিকট অনুমোদনের জন্য প্রেরণ করিবে এবং সরকারী অনুমোদন প্রাপ্তির অনধিক ৩০ (ত্রিশ) দিনের মধ্যে ডিসট্রিবিউটর বরাবরে;.
নির্ধারিত ফরম অনুসারে লাইসেন্স ইস্যু করিবে৷
(৪) উপ-ধারা (৩) এ নির্ধারিত সময়ের মধ্যে আবেদনটি নামঞ্জুর করিলে লাইসেন্সিং কর্তৃপক্ষ মঞ্জুর না করা সম্পর্কিত সিদ্ধান্ত গ্রহণের অনধিক ১৫ (পনের) দিনের মধ্যে যথাযথ কারণ উল্লেখপূর্বক সিদ্ধান্তটি আবেদনকারীকে লিখিতভাবে অবহিত করিবে৷
 
10. That being the case, this Court is of the view that it would not indeed, be overreaching itself or acting in excess of its authority to probe into the nature and scope of the respondent's statutory duty in a writ of mandamus as this. In that regard there is no doubt in the mind of this Court that this appli­cation constitutes one under Article 102(a)(i) for an order directing a person performing any function in connection with the Republic to do that which he is required by law to do. As has already been obser­ved, in this writ of mandamus the Rule as issued covers a right and interest already created by dint of the issuance in the past of both NOC and licence in respect of various channels favouring this very petitioner. Moreover, such issuance of both the NOC and licence in that instance, is based on positive judicial intervention that this Court views as serving as a precedent in this case. These factors have operated to convince this Court that both the duty of the respondent to exercise its statutory discretion as well as its duty to ensure that such discretion is exercised fairly and reasonably are duties enforceable by virtue of this writ of mandamus. Further, these enforceable duties arise in the context of the continuity and the substantive linkages between the legal and administrative regimes governed by the two sets of Nitimala and the Act. On another plane that continuity and link­age is also evident in terms of the financial benefit that has and continues to accrue to the government further to the petitioner's continued due discharge of its financial obligations owed to the government under these regimes pending an actual grant of regulatory approval by the government. Interest­ingly, such continuity and linkages are evident also in the various instances where over the years this Court has played a surrogate and substitutive role to fill the lacuna created by the inertia of a recalcitrant authority in the face of constant reminders from the petitioner. In these circumstances, it has not been difficult for this Court to see that it is faced with a writ in the nature of mandamus dealing with a discretion where the duty to act is implicit. Consi­dered in that context, the sustained failure and inertia on the part of the respondent appears to this Court both to be calculated and deliberate. In this, the deprivation likely to be caused to the plaintiff both financial and in terms of its business goodwill and its logistical dislocation has obviously not been addressed by the respondent in any discernible manner. In these circumstances, the respondent's silence has prejudiced and adversely affected the petitioner in a measure equal to any harm as may have otherwise been caused by deliberate and arbi­trary action. By that reason the respondent's inaction must validly be subjected to this judicial scrutiny. A clear reading of sections 4 and 5 of the Act reveals that in explicitly guarding against prejudice or harm caused by the protractedness of decision-making processes these provisions impli­citly recognise that inherent in the discretion to decide over the petitioner's application is an essential component of the duty to act with pro­priety. It is this Court's view that inordinate delay and protracted inaction runs counter to that duty. In other words, the delay and inaction as witnessed in this case suggests the presence of arbitrariness, especially when one considers the fact that an over­riding presumption of government action is that it is normally hedged by conditions of reasonableness, fair play and public interest, his situation becomes all the more telling with the respondent having proven to be obstinately inert while the government obviously continues to benefit from the petitioner's financial contribution to its coffers. Therein lies the justification of the petitioner's legitimate expecta­tion to be treated fairly with a discernible level of predictability of the respondent's course of action. In the absence of such predictable course of action by the respondent it is this Court's view that it is unconscionable for one party to this arrangement, i.e. the government, to benefit unilaterally by reasons of due performance by the petitioner of all its statutory and regulatory obligations while, at the same time, the Sword of Damocles is left suspended over the petitioner's corporate head. Not surprising therefore, that the Act itself guards against that scenario or contingency in the form of section 4(3) of the Act as permits any applicant for a fresh licence to continue operating until such time as such an application may be rejected. Interestingly, this was a protection that was not available under the Nitimala and in filling that lacuna by an example of proactive intervention this Court on 25-5-2005 directed status quo to be maintained in respect of the petitioner's operations precisely with a view to safeguarding the petitioner's interest as best as it could.
 
11. Bearing in mind, that a combination of both timely judicial intervention and consequential administrative prudence in action and decision as has in the past produced beneficial results for the petitioner in obtaining the NOC as stated earlier, and not losing sight of the significance of the precedents as have duly addressed the petitioner's plight earlier, this Court finds no reason to argue with the petitioner's submission that in keeping with the regulatory practice that has gained currency it would now be well within the authority of the respondent to issue NOCs with regard to the channels as specified thus by the petitioner:
 
1. Star Plus
2. Star Movies India
3. Star World
4. Star Gold
5. Channel [V] India
6. Channel [V] International
7. National Geographic Channel
8. Star Utsav
9. Star News
10. Star One
11. Toon Disney
12. Disney Channel
13. History Channel
 
12. It is this Court's view that any other action or decision taken by the respondent in refusal of the issuance of NOCs for each of the above-referred channels in favour of the petitioner, given the precedent already established by the respondent of issuance of such NOC in an earlier instance favouring the same petitioner, would be legally unsustainable. In such circumstances, consistent action is required of the respondent this time around. Moreover, in this regard this Court has had to take particular note of the assertion that notwithstanding the issuance of NOCs as directed above these will yield little to the petitioner if no registration or licence is approved with regard to the said channels. In that light, this Court appreciates that the respondent has a duty not only to issue NOCs but also to endeavour to see to the fact that the registration evident by the issuance of a licence dated 7-6-2006 (Annexure 'Q') is sustained and replicated keeping, of course, within the bounds of the Act as necessary. In this regard this Court holds that the respondent must also be seen to discharge that duty and make that endeavour. At this juncture and in the facts and circumstances of this case there, therefore, arises here the residual question of a final disposal or determination of the application for licence dated 17-10-2006 (Annexure 'K' to the Supplementary Affidavit dated 30-11 -2006). Given our views above on the nature of this writ and the fact that we are faced here with an effective failure to exercise discretion given to the respondent under the Act, the governing principle here must be that the authority in which a discretion' is Vested can be compelled to exercise that discretion but not to exercise it in any particular manner. That said it is equally important that in exercising the discretion the concerned authority must act and be seen to act in good faith, must have regard to all relevant consi­derations and concomitantly, not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Following that principle, there are precedents when mandamus has been issued, for example, on a licensing authority to deter­mine an application for licence (R Tower Hamlets London BC ex p Kayene Lavenson [1975] QB 431), or to reconsider an application for licence on proper grounds (R v London CC ex p Corrie, [1918] 1 KB 68). Following these examples, this Court sees no reason why, in the facts and circumstances of this case a similar direction may not be given to the respondent to consider the application dated 17-10­-2006 given the fact that there is noted the failure on the respondent's part to exercise its discretion per se. To that end, and based on our observations above as to both the legal, business and operational exigencies that demand a due, proper, fair and reasonable exercise of that discretion, we hereby direct the respondent to dispose of the application dated 17-10­-2006 (Annexure 'K' to the Supplementary Affidavit dated 30-11-2006) within a period of two months to be computed from the date of receipt of a certified copy of this judgment, such disposal to be effected without reference to any other litigation that may be awaiting disposal in any forum.
 
In light of the above, this Court finds substance in the Rule as made.
 
Accordingly, the Rule is made absolute with the observations and direction made above.
 
Communicate a copy of this judgment to the respondent at once.
 
There is no order as to costs.
 
Ed.