IRSHAD NOOR CNG STATION Versus NATIONAL HIGHWAY AUTHORITY, ISLAMABAD
ORDER
SHEZADA MAZHAR, J.--- Through the present writ petition, I intend to dispose of W.Ps. Nos. 19127/2010, 94/2011, 7577/2011, 22920/2011, 22918/2011, 21217/2011, 17765/2011, 22919/2011, 6509/2011, 24255/2011, 25985/2011, 22920/2011, 7578/2011, 3936/2012, 28370/2012, 6410/2012, 5553/2012, 31233/2012, 3843/2012, 5554/2012, 12833/2012, 23139/2012, 28224/2013, 28227/2013, 28226/2013, 24615/2013, 25435/2013, 22896/2013, 28228/2013, 28235/2013, 28225/2013, 24612/2013, wherein all the petitioners have challenged the National Highways, Authority s (NHA) powers to increase the lease rental charges and ground of rent for approach roads.
2 Facts necessary for the disposal of the present writ petitions are that the petitioner of W.P. No.28227/2013 applied to NHA for the change of name of his CNG filling station after obtaining No Objection Certificate for change of ownership from OGRA. The NHA issued letter dated 07.10.2013 demanding rent/lease rental charges for the period starting from 07.03.2013 to 06.03.2014 at the rates mentioned in the letter. Petitioner challenged the letter dated 07.10.2013 before this Court in the present petition on the ground that NHA had no authority to fix rent or demand rent from the petitioner.
3. In Writ Petition No.94/2011, the petitioner applied for the NOC for the use of approach roads for its Rice Mill against which NHA issued letter dated 09.12.2010 detailing requirement for grant of NOC including payment of rent/lease charges. The said letter is challenged by the petitioner in the writ petition on the ground that NHA had no authority to fix rent or demand rent from the petitioner.
4. In all the remaining writ petitions, the petitioners are running CNG filling station and have already obtained NOC for the use of road/approach road and had paid advance rent for 2, 3 or 5 years against the demand raised by the NHA at the time of issuance of NOC for 2, 3 or 5 years. On expiry of the first advance rent paid by the petitioners, the NHA raised demand for payment of rental charges/rent for approach road at the rates which was higher than the rates mentioned in the initial NOC therefore, the petitioners challenged the said demand of rent/lease on enhanced rates in the writ petitions on the ground that NHA cannot enhance the rate without notice to the petitioners and/or NHA had no authority under the law to fix or demand rent from the petitioners.
5. Learned counsel for the petitioners submits that the impugned notices are against the law and norms of substantial justice; that the respondent/NHA has made reference to clause 05 of the agreement executed between the petitioners and NHA which shows the advance payment made for 5 years at the rate mentioned in the said clause, however the impugned notices have been issued with enhanced rates which does not indicate the law under which the same have been issued. It is submitted that in the entire framework of the National Highway Authority Act, 1991 or the National Highways and Strategic Roads (Control) Rules, 1998 (as amended), no criteria has been prescribed by the department for the levy of approach rental charges at such increased rates, therefore the impugned notices are liable to be struck down, being illegal and oppressive. Submits that the law does not favour the decisions to be taken at the back of the parties to be effected. In the impugned notices demand of rental charges at increased rate without hearing the petitioners is liable to be set-aside; that the respondents/NHA had to perform their duties within the ambit of law efficaciously and judiciously but conversely the act of issuing the notice of recovering of aforesaid amount forthwith amounts to mala fide. Submits that as per Rule 12 of the National Highway and Strategic Road (Control) Rules, 1998 as amended in 2002, the respondent NHA has the authority to fix the rental charges only once while giving permission to any person or agency to set up Filling/CNG Satiation, Hotel, Motel, Restaurants, etc. and as per said rules the NHA has no authority to increase the rental charges. Submits that if it is considered that NHA has the authority to increase the rental charges, even then no mechanism or procedure is provided anywhere in the rules for the said purpose, which shows that these powers are unbridled and lacks authority of law, which exercise is not tenable in law; that increase of approach road rental charges in an arbitrary manner is not justifiable. According to Government of the Punjab Notification No.SOII.99 (C&W)1-12-85 as amended on 9th June, 1990, lease rent for approaches to petrol pumps along Highways is being charged at the rate of Rs.5000/- per month since July 1990 without any further enhancement and if the NHA are charging Rs.190,000/- as against only Rs.5000/- in the same province, this tantamount to discrimination and an act without lawful authority. Submits that the fundamental rights guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 has been violated. Submits that this is not a case of simple agreement but a performance of statutory objection and function but the respondents have not adverted to this aspect of the case, thus rendering the impugned notice, liable to be struck down. Submits that the petitioners having every right to enter upon any lawful profession and occupation and also to conduct his lawful trade and business, exorbitant enhancement in rental charges by respondents amounts to placing unreasonable and unwarranted restrictions on his right to carry on his lawful business which is not permissible under the law; that the impugned demand suffer from fatal legal infirmities and is patently an arbitrary, erroneous, unfounded and inconsistent with the law; that the respondents while issuing the impugned notices have derogated the settled judicial powers, therefore, the impugned notices are liable to be declared as void ab initio; that the respondents/NHA have traveled beyond their official powers, jurisdiction and authority by taking up on issue which has been settled down between the petitioners and respondents at the time of grant of No Objection Certificate. Submits that the respondent government is duty bound to provide unhindered, troubled free passage/road to the General Public for approaching the Filling Stations, Gas Station and for this purpose the petitioners cannot be burdened with huge rent by the respondents. Submits that the real beneficiary of the CNG facility provided by the respondent are general public and therefore lease rental charges are required to be fixed at minimum level for indefinite period. Such duty is manifest from the Constitution of Islamic Republic of Pakistan and any contradictory act of respondents, besides being illegal also amount to shifting their constitutional responsibility on the petitioners by imposing heavy rental charges for the approach roads. Further submits that when the notices were received by the petitioners they were receiving gas only for three days a week. Further submits that now the respondents are not providing any gas facility to the petitioners on the one hand and on the other hand demanding increased rent/lease rental charges at the rate which is inconsistent with the settled norms. Further submitted that the increase has been made by the General Manager of the NHA who has no authority to increase the same; that matter relates to the demand of rent at the enhanced rate, which is to be dealt with under the Punjab Rented Premises Act, 2009 wherein the respondents can increase the rent at the rate of 10% per annum or 25% after three years but in the case in hand, the respondents/NHA have increased the rent exorbitantly.
In support of their contentions, learned counsel for the petitioners have relied upon Muhammad Akbar Cheema v. The Province of West Pakistan and another (1984 SCMR 1047), Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 SC 65), Government of Pakistan and others v. Muhammad Ashraf and others (PLD 1993 SC 176), Government of N.W.P.F. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others (1997 SCMR 1804), Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others (1998 SCMR 1404), Shafi Muhammad Sand v. Government of Sindh and another (2010 SCMR 778), Pakcom Limited and 2 others v. Federation of Pakistan and others (PLD 2011 SC 44), Messrs Golden Falcon Travel Services (Pvt.) Ltd. through Director v. Ministry of Religious Affairs, Hajj, Zakat, Usher, Government of Pakistan through Secretary, Islamabad and 2 others (PLD 2007 Lah. 550), Nazir Cotton Mills Ltd. v. State Bank of Pakistan and others (2007 YLR 3148), Warid Telecom (Pvt.) Ltd. and others v. Pakistan Telecommunication Authority, Islamabad and others (PLD 2013 Isl. 55), Muhammad Jan v. Secretary Health Department, Government of Balochistan and 2 others (2013 PLC (C.S.) 370) and Syed Jafar Hussain Shah and another v. Government of Punjab through Secretary Transportation and 3 others (PLD 2013 Lahore 673).
6. On the other hand, learned counsel for the NHA submitted that the Executive Board of the respondent Authority is duly established under section 7 of the National Highway Authority Act, 1991 as amended in 2001 and is empowered to approve/revise rates for issuance of NOC's for commercial outlets on National Highways network. The said Executive Board in its 166th meeting held on 19th January, 2009 revised the approach rental charges, therefore, the present writ petitions are not maintainable and are liable to be dismissed. Further this Court has no jurisdiction to entertain and adjudicate upon the present lis which is relating to the terms and conditions of the offer letter and undertaking executed by the petitioners regarding the approach rental charges. Submits that the offer made by the NHA and undertaking given by the petitioners thereon, regarding amount of approach rental charges, is a disputed question of fact which cannot be resolved in writ jurisdiction. Submits that factual controversy regarding the payable amount will be determined after recording of evidence, hence, this Court lacks jurisdiction to entertain these writ petitions. Further submits that the petitioners have not approach this Court with clean hands and have willfully misrepresented and concealed the relevant facts and the petitions are appears to be based on surmises and conjectures, hence are liable to be dismissed. It is next argued that the writ petitions are without any legal force as the grounds do not disclose any statutory irregularity/illegality committed by the NHA, therefore, the same merits to be dismissed. Submit that the Executive Board of NHA revised approach rental rates/charges, which are applicable from January, 2009. On the basis of following rationales/reasons:-
(a) Tremendous increase in CPI since 2005
(b) Traffic volume/commuters on roads has increased manifold, thereby enhancing business activities of all commercial outlets located on NHA network.
(c) NOC/commercial fees charges by organizations such as CDA/LDA kept in respective.
Further submits that NHA fixed the rental charges and applied the same to the petitioners accordingly. Submits that at the time of issuance of the initial NOC petitioners were charged lease rent/ground rental charges according to the approved rate of that time. The approach rental charges were revised for the third time by the Executive Board of NHA in the year 2009. On expiry of initial period of 2, 3, or 5 years of NOC, the petitioners were issued notices to deposit the rent for the next 2, 3 or 5 years as per the condition of NOC at the rates prevailing when the notices were issued. Submits that the ground rent and lease rental charges have not been deposited by the petitioners and filed writ petitions to challenge the same. Submit that according to the agreement, executed between the petitioners and NHA, the petitioners are bound to pay the rent at the rate fixed by the NHA. However, on non -payment, the petitioners have become defaulter and due to this reason also these writ petitions are liable to be dismissed.
In support of their contentions learned counsel for the respondents have relied upon Shah Wali and others v. Ferozuddin and others (2000 SCMR 718), Syed Asif Majeed and 5 others v. A.D.C.(C)/ASC(L), Lahore and 15 others (2000 SCMR 998), Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415), Punjab Small Industries Corporation v. Ahmad Akhtar Cheema (2002 SCMR 549), Lahore Cantonment Cooperative Housing Society Limited, Lahore, Cantt, through Secretary v. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 SC 1068), Government of Pakistan through Secretary Ministry of Commerce, Pak, Secretariat, Islamabad v. Messrs Village Development Organization, V.P.O. Landrwan, District Laki Marwat through (General Attorney) Sher Adam (2005 SCMR 492 SC), Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44) and Messrs Ahan Saz Contractors v. Pak Chromical Limited (1999 MLD 1781).
7. I have heard the arguments and have also gone through the record.
8. Learned counsel of the respondents/NHA have raised the objection regarding maintainability of the present writ petitions on the ground that in these petitions, the petitioners have raised factual controversy which cannot be resolved without recording evidence and that such recording of evidence cannot be done in constitutional petitions. The case law referred by the learned counsel for the respondents/NHA relates to the said point.
9. This Court is of the opinion that as the main objection of the petitioners in the writ petitions is regarding the NHA has no authority under the law to fix the ground rental charges/lease rental charges and that such charges have been fixed without hearing the petitioners, therefore, these writ petitions are maintainable.
10. As mentioned above, the main argument of learned counsel for the petitioners is that the NHA had no authority under the law to fix the rent/lease rates, therefore I will first analyze the relevant law to see whether NHA had any authority under the law/rules/regulations to fix the rent/lease rates for the use of roads/Right of Way (ROW) on the National Highways.
11. The National Highway Authority have been established through National Highway Authority Act, 1991 (hereinafter referred to as NHA, Act 1991) for planning, development, operation and maintenance of National Highways and Strategic road and matters connected therewith. Under section 7 of the NHA Act, 1991 the management of the Authority is vest with the Executive Board, which is authorized to exercise all powers, functions and do all acts and things which are to be done by the Authority. Under sub-clause (2) of section 7 the composition of board is mentioned. Section 7 states as under:-
7. Management: (1) The general direction and administration of the Authority and its affairs shall vest in the Executive Board which may exercise all powers, perform all functions and do all acts and things which may be exercised, performed or done by the Authority.
(2) The Board shall consist of a Chairman and not more than eight Members to be appointed by the Federal Government and shall included Secretaries to the Government of Pakistan in the Ministries of Communications and Finance and Planning and Development Division, who shall be ex-officio Members, and not less than two professionals in the field of highway construction and management.
(3) The meetings of the Board shall be held at such times and places and in such manner as may be prescribed by regulations:
Provided that, untill regulations are made in this behalf, the meetings shall be held as and when convened by the Chairman.
(4) The Chairman or, in his absence, a Member authorized by him in this behalf, and three Members shall constitute a quorum for a meeting of the Board.
Section 10 of the NHA Act, 1991 enlist the powers of the Authority which include inter alia clause 10(2)(viii) which states as under:-
(viii) License facilities on roads under its control on such terms as it deems fit;
It is also included in the powers of the Authority to raise funds. The said powers is mentioned in section, 10(2)(xiii) which is reproduced as under:-
(xiii) raise funds (local and foreign) through borrowing, floating of bonds, sharing or leasing of assets or any other means, from time to time:
12. From the above it is clear that NHA's Executive Board had the authority to grant license facilities on the roads and also gave its assets on lease. As the NHA have been established to manage roads therefore, the roads assigned to the Authority shall be managed and operated by the Authority on the terms as deemed fit by the Authority. It has not been denied by any of the petitioners that the roads on which petitioner's CNG stations/rice Mill exist are assigned to the NHA and therefore the same are under control and management of the NHA.
The roads are also defined in section 2(k) of the NHA Act, 1991 in the following terms:- "road" means a road including land within the light of way and all works, such as, carriageways, cartways, footpaths berms, side drains, culverts, bridges, tunnels, fences, posts, sign boards, plantation and lighting arrangements, intersections and medians assigned to the Authority.
The right of way (ROW) has been defined under 2(j) in the following terms:-
"Right of Way"(ROW) means the land acquired for the purpose of construction of National Highway or any other road assigned to the Authority;
13. All the CNG Stations/Rice Mill exists next to the roads or on the ROW and therefore Petitioners are using the roads and ROW under control of the NHA for their business. They were required to obtain NOC from the NHA to use the roads/ROW for their business. The said NOC's can be granted by the NHA under the NHA Act, 1991 on such terms as deemed fit to NHA.
14. Similarly under Rule 8 of the National Highways and Strategic Roads (Control) Rules 1998 (NHA Rules, 1998) any person can apply for the consent of NHA for construction on the building line/right of way which consent may be granted on the conditions Authority deem fit to impose including any fee/charges. The rule states as under:-
Construction of means of access to or from the road or to construct a building, structure and other amenities within a building line: --- (1) Any person wishing to obtain the consent of the Authority to construct a means of access to or from the highway or to construct a building, Structure and other amenities within the building line determined under rule 5 or under any provincial law before the commencement of Act shall apply to the Authority for grant of its permission.
(2) the applicant shall furnish to the Authority such plans, other relevant documentation and fees as it may require in this behalf as prescribed under NHA regulatory framework and standard operating procedures for preservation and commercial use of Right of Way (ROW).
(3) The Authority shall, subject to due consideration to highway safety and convenience of road users and if satisfied that the permission to construct a means of access to, or from, the highway or to construct a building, structure and other amenities within the building line may be granted, inform the applicant accordingly, subject to such conditions as it may deem fit to impose on payment of such fees as it may fix.
(4) In case the Authority is of the opinion that such permission may not be granted, it shall record its reasons, in writing, for refusal to grant such permission and inform the applicant accordingly with reasons for such refusal.
Also under rule 12 of the NHA Rules 1998, NHA has the authority to allow construction of approach roads or culverts for the use of Government Land against fee or ground rental charges. Clause 12 states as under:-
License for grant of permission to construct approach roads or culverts for the use of Government land for construction, installation of filling/CNG stations, other amenities and laying of utility lines through, across, under and over the road or bridge:- (1) The authority may, at its discretion, with due regard to the safety and convenience of the road user and subject to such conditions as it may impose and on payment of such fees and rental charges/lease charges as it may fix, permit any person or agency to; (a) setup filling/CNG stations, hotel/motel, restaurants, sign boards, nurseries, shops, khokhas, hoardings, banners for a specific period: (b) to carry any cable wire, pipeline, drain, duct, sever or channel of any kind through, across, under or over any national highway, motorway, strategic road and bridge under its control, (c) to manage the national highway, strategic road and bridge corridor including all amenities in sections or subsections or part thereof as commercial entity through management contractor on behalf, of the authority, at a fee or ground rental charges prescribed by the authority in the duly executed contract agreement approved by the Board or as prescribed under Regulatory Framework and Standard Operating Procedures of the Authority.
(2) Any person or agency wishing to obtain the consent of the authority to construct or lay out a means of access to or from or to construct a building, structure and other amenities within ROW and building line to which restrictions have been applied by or under subsection (1) of rules 3, 6 and 11 and shall furnish with his application such plans and other particulars as may be prescribed by authority and the authority may refuse to grant the application or may grant the application subject to such conditions as it may deem fit to impose and ground rental charges and fees prescribed under Regulatory Framework and Standard Operating Procedures of the Authority.
(3) If the owner of CNG/Filling stations, restaurants, hotels/motels, factories, nurseries, shops/khokhas and any other amenities or government agencies, departments cantonment boards fails to pay the lease or ground rental charges in the prescribed time and fails to comply with the instructions of the authority, a surcharge fee shall be charged at the prescribed rates as given in the regulatory framework and standard operating procedures of the authority.
15. Under the above mentioned powers of the NHA Act, 1991 and NHA Rules 1998, NHA Executive Board approved the policy guidelines in its 92nd meeting and constituted a committee to finalize the Regulatory Framework and Standard Operating Procedures for Preservation and Commercial Use of Right of Way, (ROW) 2002 (hereinafter referred to Policy 2002). The Executive Board in its 104th meeting held on 29.03.2002 implement its Policy 2002 for Preservation/Commercial use of ROW regarding establishment of filling/CNG Stations, hotels/motels, restaurants, nurseries, factories, shops, khokhas, kiosks, hoarding boards, utility lines, etc.
16. In this policy all the requirements for grant of NOC were mentioned including the charges for registration/NOC fee as well as the charges for the establishment of Filling/CNG stations on applicant's own land but using NHA land (ROW) for approaches. The rates approved in the year 2002 were as under:-
Establishment of Filling/CNG Stations on applicant's own land but using NHA land (ROW) for approaches (Category 1(ii)(a) and (b)
(1) The following approach rental charges shall be charges from Category 1(ii)(a) and (b) Filling Stations:
(i) Non-Refundable NOC Charges of Rs.20,000/-in favour of NHA RM Account, Islamabad.
(ii) Approach/Access Road Rental Charges shall be paid for 1st five years in advance. After 5 years the owner shall deposit yearly advance rental charges by 31st July of every financial year.
Major Cities
Minor Cities
Rural a) Motorway
M-1 and M-3) As per concession agreement b) N-5
Rs. 20,000/- per year
Rs. 15,000/- per year
Rs. 10,000/- per year c) N-55
Rs. 15,000/- per year
Rs. 10,000/- per year
Rs. 7,000/- per year d) Others
Rs. 10,000.- per year
Rs. 3,000/- per year
Rs. 5,000/- per year
All the CNG Stations/mills in 2002 established after the promulgation of above policy were directed to pay the charges as determined above.
It is in this Policy 2002 where NHA has mentioned its right to revise the rates. In para 4(iii) of Chapter IV of the Policy 2002 the right of revision is mentioned in the following words.
(iii) Revision of Rates
All the above rates will be revised by NHA Rate Revision Committee, constituted by the Chairman, NHA on annual basis or as the case may be.
17. It is in this Policy 2002 that the draft of the offer letter for the grant of NOC is also attached. This draft offer letter contains the same terms which are mentioned in the offer letters issued to all the petitioners and also attached by almost all the petitioners with their writ petitions. It is the terms of this offer letter on which petitioners have relied upon to state that the rates mentioned in the offer letter cannot be changed/enhanced without their consent. The relevant clause is as under:-
You will pay Rs.-------- (Rupees ------- only) per annum on account of administrative charges/land rent. First five year's dues are payable in advance by bank draft/pay order drawn in favour of NHA, RM Account, Islamabad. The charges will be revised periodically. In case of non-payment of dues, the NOC will be withdrawn. (emphasis added.)
18. The underlined clause when read with clause 4(iii) of Chapter IV of the Policy 2002 it is cleared that the NHA had the power and authority not only to claim rent but also fixed the rate annually or periodically at its sole discretion.
19. From the record it reveals that the 1st amendment in the rates were made in September 2005 and the rates were revised to as under:-
(ii) Approach/Access Road Rental Charges shall be paid for 1st five years in advance. After 5 years the owner shall deposit yearly advance rental charges by 31st July of every financial year.
Major Cities
Minor cities
Rural a) Motorway
M-1 and M-3) As per concession agreement b) N-5
Rs. 100,000/- per year
Rs. 75,000/- per year
Rs. 50,000/- per year c) N-55
Rs. 75,000/- per year
Rs. 50,000/- per year
Rs. 35,000/- per year d) Others
Rs. 50,000.- per year
Rs. 25,000/- per year
Rs. 25,000/- per year
20. All the petitioners who applied for the establishment of CNG Stations after September, 2005 were directed to pay lease rental charges/rent at the rates mentioned above.
21. The above rates lastly revised in the year 2009 on 19.01.2009. It is this amendment on the basis of which notices were issued to the petitioner for the payment of the rents/charges which have been impugned in the present writ petitions. This amendment in the rates was made after considering number of facts which have been discussed in the minutes of meeting. Perusal of the minutes of meeting dated 19-01-2009 reveals that the rates have been fixed after due deliberation which is evident from the below:-
15.3. Background. The Executive Board, in its 164th meeting held on December 5, 2008 considered a proposal seeking introduction of processing/registration fee on commercial outlets and revision of approach/rental charges on/along NHA's ROW on national highway network but directed:‑ a. Submission of a fresh comprehensive proposal after detailed in house deliberations. b. Suggested fee/charges should be proportionate to importance/size of the area but not less than that given below:-
Category
Rs. in M i.
Rural arrears
0.50
Urgan Areas ii.
Minor cities
1.00 iii.
Major cities including motorway link roads
2.00
15.4. Re-evaluation. Differentiation of rates on the basis of urban/rural area is not feasible as volume of traffic on different roads sections does not vary on this principle. As such, rates should be asked on traffic volume/other considerations.
15.5. Basis of Rationalization. a. Tremendous increase in CPI since 2005. b. Traffic volume/commuters on roads has increased manifold, thereby enhancing business activities of all commercial outlets located on NHA network. c. NOC/commercial fees charged by organizations such as CDA/LDA kept in perspective.
15.6 Criteria Followed. a. CPI taken from the Economic Survey of Pakistan for 2007-08. b. Traffic Volume considered instead of area based categorization.
15.7. Formula. The following formula was applied while taking 2005 as the base year:-
Formula
T x = T xo x (1 x x 1 xo )/1 xo l x
Last CPI/inflation value available prior to toll revision viz 155.74 for FY 2007-08 l xo
Last RPI/CPI inflation value available prior to setting the base year viz 121.98 for FY 2004-05
T xo
Current rate
T x
Revised rate
CPI
Consumer Price Index
RPI
Retail Price Index
15.8. Revised Fee While keeping the minimum threshold given in Para 15.3 in view, revised processing/registration fee and approach/rental charges on different categories of commercial outlets such as filling/CNC station, hotels, motels, restaurants, kiosks, khokhas, etc, and other ROW related activities were suggested. Details are in Annex-G to X.
15.9. Guiding Principle. Following principle was approved suggesting the revised fees/rental structure: a. Minimum charge rate fixed for traffic volume 5000 vehicles per day (vpd). b. Minimum charge rate fixed for traffic ranging 5001 -10000 vpd. c. Application of premium on 'b' above at the following rate for higher ranges of traffic volume:-
Vehicles Per Day
Premium i.
10001-14000
10% ii.
14001-20000
30% iii.
20001-25000
45% iv.
25001-30000
60% v.
30001-45000
75% vi.
45001 and above
100%
15.10 Other Conditions a. NOC/commercial registration fee (non-refundable would be applicable on all legally executed letter GoP/NHA land since the year 2002. b. All other fees/revised rates will be applicable January 1, 2009. c. Approach rental charges for motorways expressways will be as per concession agreement. d. All NOC/registration fees would be non-refundable: e. All cash security deposits would be refundable. f. The responsibility for collection of approach/rental charges would be outsourced through a transport competitive mechanism. g. Anomalies in application of new fees/revised rates if any, will be identified and brought to the notice of Executive Board with suggested corrective action.
22. From the above it is clear that the power to enhance rent rate/charges has not been exercised arbitrarily. It is also clear from the above that under the law/rules the authority to revise the rent rates/charges were solely rest with the NHA authority and the petitioners were not required to be heard before raising the rent rates/charges.
23. The citation relied upon by the petitioners Muhammad Akbar Cheema v. The Province of West Pakistan and another (1984 SCMR 1047) is not relevant to the case in hand as in the said case the Hon'ble Supreme Court held that machinery provisions of Revenue Act could only be set into motion after claim had actually ripened into "dues". In the case in hand firstly NHA had not initiated any process for recovery through the machinery of Revenue Act. Secondly the claim of NHA had actually ripened into dues and therefore NHA had full authority to recover the same by using the machinery of Revenue Act.
24. The judgment relied upon by the learned counsel for the petitioners reported as Hassan Din v.Hafiz Abdus Salam and others (PLD 1991 SC 65) is also not relevant to the case in hand as in the said case the issue in question was with regard to the jurisdiction of the High Court to interfere in constitutional jurisdiction with an order passed by the District Judge under section 115(2), C.P.C.
25. The case law relied upon Government of Pakistan and others v. Muhammad Ashraf and others (PLD 1993 SC 176) relates to the Customs Act, 1969 and therefore not relevant to the present case.
26. In case law relied upon by the petitioners reported as Government of N.W.P.F. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others (1997 SCMR 1804), the Hon ble Supreme Court of Pakistan has held that vide worded powers conferring discretion should be structured. Same has been held in Muhammad Jan v. Secretary Health Department Government of Balochistan and 2 others (2013 PLC (C.S.) 370). Petitioners have relied upon the said judgments to state that the discretion have been used arbitrarily by the NHA. The perusal of the last revision made by the NHA clearly show that the powers given to them have been used keeping in view the ground realties and that NHA has used the discretion according to the rules and on agreed terms and therefore, the said judgment is not relevant to the case in hand.
27. In Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others (1998 SCMR 1404), the issue of the levy of tax and the amendment made in fiscal law through money bill has been discussed. The said judgment is also not relevant to the case in hand as in the present case lease/rent charges have been enhanced by the NHA authorities as per the powers available under the law/rules and policy. Further as discussed above the NHA had the powers to enhance the same not only under its-law/rules and regulations but also under the contract agreement made between the petitioners and NHA.
28. Similarly in Pakcom Limited and others v. Federation of Pakistan and others (PLD 2007 Lahore 550), relied upon to submit that respondent NHA has taken undue advantage of its position. I have gone through the said judgment and I am of the view that the principles laid down in the said judgment are not applicable to the case in hand.
29. The case law relied by the petitioners Messrs Golden Falcon Travel Services (Pvt.) Ltd. through Director v. Ministry of Religious Affairs, Hajj, Zakat, Usher, Government of Pakistan through Secretary, Islamabad and 2 others (PLD 2007 Lahore 550) to state that no criteria was laid down for the enhancement of the rent/lease. As mentioned above the last enhancement which is under challenge before this Court have been made after following a criteria and also keeping in view the ground realities. Further under the contract NHA had the power to enhance the rent/charges periodically. Therefore, the said judgment is also not relevant to the case in hand.
30. Learned counsel for the petitioners have relied upon the judgment titled as Shafi Muhammad Sand v. Government of Sindh and another (2010 SCMR 778 SC), Nazir Cotton Mills Ltd. v. State Bank of Pakistan and others (2007 YLR 3148 Karachi), Warid Telecom (Pvt.) Ltd. and others v. Pakistan Telecommunication Authority, Islamabad; and others (PLD 2013 Islamabad 55) to submit that petitioners have been condemned unheard.
31. In this regard it is submitted that the above judgments are not applicable to the case in hand as the NHA was not only authorized to enhance the lease/rent under the law/rules/regulation on its own without any notice to the petitioners but the said right is also granted to the NHA under the contract executed between the parties.
32. In view of what has been discussed above these writ petitions are dismissed.
ARK/I-7/L Petition dismissed.