PAKISTAN ENGINEERING COUNCIL vs AFZAL ANWAR ASSOCIATES And Other

ORDER

1. ZAFFAR HUSSAIN MIRZA, J.--- These are three petitions for leave to appeal directed against the judgment of a Division Bench of the Sindh High Court, dated 10th August, 1989, by which the Constitution Petitions instituted by the respondents in the three petitions were accepted and Bye- law No.3 of Bye-laws called the `Construction and Operation of Engineering Works Bye --Laws, 1987', framed under section 25 of the Pakistan Engineering Council Act, 1976, was struck down as ultra vires.

2. Pakistan Engineering Council, the petitioner in all these petitions, is a statutory body constituted under section 3 of the Pakistan Engineering Council Act, 1976, (hereinafter referred to as the Act). In exercise of power under section 25 of the Act the petitioner vide its notification dated 8th July, 1987, published the Construction and Operation of Engineering Works Bye-laws, 1987 (hereinafter referred to as the Bye-Laws). Bye-Law No.3 of these Bye-Laws provided that no Engineering Works shall be constructed except by a contractor or operated except by an operator licensed as such by the Council. Under the next Bye-Law all the contractors and operators were required to obtain licences for that purpose. The respondents in these petitions are approved contractors registered with the Public Works department, and other statutory corporations, engaged in the construction works through contracts. Being aggrieved by the new Bye-Laws, they challenged the vires of Bye- Law No.3 in separate Constitution petitions. The learned Judges of the Division Bench of the Sindh High Court who decided the constitution petitions held that the impugned Bye-law before them was beyond the scope of authority vesting in the petitioner council under section 8 of the Act, relating to functions specified therein. It was observed that the Act is essentially intended to regulate or organize the Professional Engineers and not to do so in respect of the contractors.

3. Consequently the impugned bye-law was contrary to the provisions of the parent Act which is confined to engineering profession and not to engineering works or contractors.

4. In support of the petitions, Mr. Abid Hassan Minto, learned counsel for the petitioner contended that the learned Judges of the Division Bench had erred in interpreting the scope of the functions and powers of the petitioner council under the Act. He defended the vices of the Bye-law in question by reference to section 2(k) of the Act, which defines `Professional Engineering Works' read with section 27 which provides penalty for those who employ persons whose names are not borne on the register of Professional Engineers maintained by the Council. He also referred to section 8(e) and (f). According to the arguments of the learned counsel- the learned Judges of the High Court had ignored these provisions of law in coming to the conclusions that the petitioner had exceeded the scope of its authority in framing the Bye-laws in question.

5. Mr. Khalid lshaque for the caveators/respondents on the other hand sought to support the impugned judgment and urged that the bye-law in question imposes wholly unreasonable and excessive financial burdens upon the respondents, which were outside the purview and scope of the Act.

6. We, however, feel that the contentions raised by the petitioners are of first impression and require authoritative determination by this Court. We would accordingly accept these petitions and grant leave to appeal.

7. The appeals shall be prepared on the present record. It will, however, be open to the parties to file additional documents if any. We further direct that in view of the importance of the question involved in these cases, these appeals shall be set down for hearing within six months.

8. Learned counsel for the parties jointly request that the appeals arising out of these petitions may be heard at Karachi. For this purpose these cases will be placed before his Lordship the Chief Justice for necessary orders as deemed proper.