PLJ 2014 Lahore 724
[Rawalpindi Bench Rawalpindi
[
Present: M. Sohail Iqbal Bhatti, J.
M/s. NATIONAL HIGHWAY AUTHORITY--Petitioner
versus
W.P. No. 318 of 2006, decided on 21.4.2014.
----Ss. 10(2)(XII) & 27--Contract for construction of road was cancelled while 60% of work had been completed--Arbitration found entitled to recover a specific amount--Right of way of roads declared as NHA with consent of concerned authorities be effected free of cost and without liabilities--No liability could be transferred upon shoulders of petitioners--Validity--No decision can be made in contravention to statutory provisions i.e. Section 10(2)(XV) of NHA Act, 1991--It is an established law that any contract executed between parties in violation to law is ab-initio void and is not enforceable under law--While passing impugned order completely misdirected himself while referring to Section 27 of NHA Act, 1991--Entire edifice constructed on basis of void order crumbles along with same and did not require to be set aside through appeal or any other proceedings--No liability of respondents any stretch of imagination could have been transferred to petitioner authority. [P. 729] A, B & C
----Contract for construction of road was cancelled--Question of limitation regarding initiation proceedings against order--Validity--Where order passed in contravention of mandatory provisions of law, such order was a nullity against which no limitation could run--An order passed without lawful authority can be questioned at any kind and passage of time cannot invest legality upon a void order. [P. 729] D
----Power of--Defective exercise of jurisdiction--Powers of judicial review in writ of certiorari by High Court would always be exercised where there is a defective exercise of jurisdiction by Courts below; defective exercise of jurisdiction would always mean that Courts below have acted in grave and obvious disregard of material provision of law. [P. 730] E
----Art. 199--National Highway Authority Act, 1991, Ss. 10(2)--Constitutional Petition--Power of judicial review--Work order issued for construction of road was cancelled while 60% work had been completed--Arbitration found to entitle to recover specific amount--No limitation would run against void ab-initio order and where error of law was committed--Same can be corrected by High Court in exercise of its extra-ordinary constitutional jurisdiction--Validity--Courts are not to pass orders of their liking, solely on basis of their vision and wisdom, rather they were bound and obliged to render decisions in accordance with law--Where order passed by Court is in violation of express provisions and spirit of law, High Court in its extra ordinary constitutional jurisdiction would not allow that order to remain intact as same would cause prejudice and serious breach of legal rights of litigants; and therefore, High Court in its constitutional jurisdiction could always rectify illegality and violation of law and undo harm caused by orders of Court--Where impugned act/order is completely without jurisdiction and patently illegal, it is not essential to avail alternate remedy--Sub-ordinate Courts had not considered impact of Section 10(2)(XV) of NHA Act, 1991 while burdening petitioner with liability on basis of minutes of meeting which can never have an over-riding effect over mandate of law--Constitutional jurisdiction of High Court can always be exercised where tribunal had acted without or in excess of jurisdiction. [P. 730] F, G, H & I
Date of hearing: 18.3.2014.
Judgment
Through this constitutional petition, the petitioner has challenged the order dated 28.07.2005 passed by Senior Civil Judge, Attock and order dated 29.11.2005 passed by learned Additional District Judge, Attock.
2. The facts of the case are that Respondent No. 6 was awarded a contract by Government of Punjab (Respondents No. 1 to 5) for construction of "Tarnole Khushal Garh Road" Section 17/2 to 29/0 and 22/0 to 25/0. The work order was issued in favour of Respondent No. 6 on 14.04.1993 while Respondent No. 6 had completed 60% of work; vide letter No. 8028/C dated 02.12.1993 the contract was cancelled. The matter was referred to Arbitration and Respondent No. 6 through an award dated 18.01.1999 was found entitled to recover an amount of Rs.3,77,139/- from Respondents No. 1 to 5. This award was made the Rule of Court on 21.01.2002 and Respondent No. 6 along with the amount of Rs.3,77,139/- was also found entitled to 6% annual profits on the amount recoverable from Respondents No. 1 to 5. The execution petition was filed by the Respondent No. 6 on 22.05.2002 against Respondents No. 1 to 5 for recovery of Rs.6,65,000/-.
3. During the pendency of the execution proceedings, the different roads of the Provincial Highways Department were handed over to the petitioner. An application was filed by Sub-Divisional Officer, Provincial Highways that since the road in respect of which the award was announced and subsequently made the Rule of the Court has been handed over to the petitioner and therefore the amount be recovered from the petitioner. Consequent upon this application, a letter was issued to the officials of Provincial Highways as well as the Deputy Director of the petitioner; the petitioner filed a reply to the said application contending that the petitioner is established under National Highway Authority Act, 1991 and it was contended in the reply filed by the petitioner that any takeover of right of way (ROW) of the roads declared as National Highways with the consent of the Provincial and approval of the Federal Cabinet shall be free of cost and without any liability or condition.
4. The learned executing Court through order dated 28.07.2005 while making a reference to the Minutes of the Meetings dated 02.07.2002 held that the petitioner is under the legal obligation to satisfy the decree passed in favour of Respondent No. 6. Aggrieved by the order passed by the executing Court, a civil revision was filed by the petitioner which was also dismissed on 29.11.2005, hence this writ petition.
5. The learned counsel for the petitioner while advancing his arguments contended that both the Courts below have misconstrued the law while passing the impugned orders. In terms of Section 10(2)(XV) of NHA Act, 1991; the right of way has to be given to the petitioner without any liability or conditions; it has been further contended that the minutes of the meeting which have been referred to by the executing Court in his order dated 28.07.2005 were violative of the statute and thus could not make the petitioner liable to satisfy the decree passed in favour of Respondent No. 6 against the Respondents No. 1 to 5.
6. The learned counsel for the petitioner has further drawn my attention to the letter dated 30th January, 2002 addressed to the Chairman National Highway Authority by the Government of Punjab, Communication and Works Department which provides that the certain roads would be transferred in the name of National Highway Authority free of costs and without encumbrance; the learned counsel further argued that the learned Additional District Judge has also erred in law while referring to Section 27 of the NHA Act, 1991. It was further argued that since the order passed by both the Courts below were against the statutory provisions and based upon misreading and non-reading of law, thus no limitation as observed by the learned Additional District Judge would run against the order dated 28.07.2005 which was void ab-initio; and where the error of law has been committed by a sub-ordinate Court, the same can be corrected by this Court in exercise of its extra ordinary Constitutional jurisdiction.
7. On the other hand, the learned law officer appearing on behalf of Respondents No. 1 to 5 primarily hinged his arguments on the minutes of the meeting dated 02.07.2002 and handing/taking over charge of Tarnole Khushal Garh Road where the case filed by Respondent No. 6 is also included in the list of cases handed over to the NHA.
8. It has been further contended that an appeal against order dated 28.07.2005 was to be filed but instead of filing of appeal a revision petition was filed and the learned Additional District Judge has rightly observed that the revision petition was not maintainable and if the revision petition is to be converted into appeal, the same would be barred by time.
9. The learned counsel for the Respondent No. 6 adopted the arguments advanced by the learned law officer and further argued that even if the order passed by the revisional Court was erroneous on facts or law could not be interfered in constitutional jurisdiction as writ against such order was incompetent.
10. I have considered the arguments advanced by the learned counsel for the parties and also gone through the record.
11. It would be appropriate to refer to Section 10(2)(XV) of NHA Act, 1991 which is reproduced below:--
Section 10(2)(XV).
"takeover ROW of the roads declared as National Highway
12. The perusal of this section makes its explicit that right of way of the roads declared as National Highway
The word "liability" has been defined in Blacks' Law Dictionary as under:--
"liability" means.
All character of debts and obligations. Amenability or responsibility.
An obligation one is bound in law or justice to perform.
An obligation which may or may not ripen into a debt.
Any kind of debt or liability, either absolute or contingent, express or implied.
Duty to pay money or perform some other service.
Duty which must at least eventually be performed.
Every kind of legal obligation, responsibility, or duty.
Penalty for failure to pay tax when due. Present, current, future, fixed, or contingent debts.
That which one is under obligation to pay, or for which one is liable.
The state of one who is bound in law and justice to do something which may be enforced by action.
All the claims against a corporation.
Liabilities include accounts and wages and salaries payable, dividends declared payable, accrued taxes payable, fixed or long term liabilities such as mortgage bonds, debentures and bank loans."
13. Since the word "liability" has not been defined in NHA Act, 1991; the plain dictionary meanings of the term would be taken in account and when this definition of liability is read in conjunction with Section 10(2)(XV) of NHA Act, 1991, it becomes explicit that no liability of whatsoever nature/kind could have been transferred upon the shoulders of he petitioner.
14. The minutes of the meeting referred to by the learned law officer refer to the understanding effected amongst the officials of Communication and Works Department and National Highway Authority. The relevant part of the minutes is reproduced below:--
"Deputy Secretary (Highways) further informed that the ROW of the various federalized roads will handed over to NHA with all liabilities such as Court cases and compensation cases etc. and after handing over of ROW, immediate request to all concerned Courts would be made by concerned NHA officials for making NHA as party to these cases in place of C&W Department as well as Federal Government in place of Provincial Government. The condition was agreed by the General Manager and accordingly Superintending Engineer, Provincial Highway Circle, Rawalpindi was requested to prepare a list of all such Court cases, land compensation cases etc. for handing over to the NHA for further necessary action."
15. I do not find myself in agreement with the observation made by the learned executing Court in order dated 28.07.2005 as in my opinion no decision can be made in contravention to the statutory provisions i.e. Section 10(2)(XV) of NHA Act, 1991.
16. It is an established law that any contract executed between the parties in violation to law is ab-initio void and is not enforceable under law. Similarly, the learned Additional District Judge while passing the impugned order dated 29.11.2005 completely misdirected himself while referring to Section 27 of the NHA Act, 1991. The Section 27 of the NHA Act, 1991 is reproduced as under:
"Transfer of rights and liabilities.--(1) As from the commencement of this Act all assets and liabilities and all rights and obligations of the National Highways Board and the Directorate General National Highways shall stand transferred to the Authority."
17. Section 27 basically relates to the transfer of all assets, liabilities, rights and obligations of National Highways Board and the Directorate General, National Highways to the National Highway Authority constituted under Section 3 of National Highway Authority Act, 1991; the Section 27 does not have any relevance or application to the present case.
18. The impact of the void order has been discussed by the Honourable Supreme Court of Pakistan in a judgment reported in 1997 SCMR 1635 (Muhammad Ramzan and others Member (Rev.)/CSS and others that any order passed in disregard to the existing law and tends to frustrate the provisions of law would be deemed as a nullity. It was further observed that entire edifice constructed on the basis of void order crumbles along with same and did not require to be set aside through appeal or any other proceedings. No liability of Respondents No. 1 to 5 by any stretch of imagination could have been transferred to the petitioner authority. As far the question relating to limitation regarding initiation of proceedings before Additional District Judge against the impugned order dated 28.07.2005. I would refer to the judgment reported in 1987 SCMR 1543 (Malik Khawaja Muhammad and 24 others versus Marduman Babar Kahol and 29 others) where the Honourable Supreme Court of Pakistan has observed that where the order passed in contravention of the mandatory provisions of law, such order was a nullity against which no limitation could run. An order passed without lawful authority can be questioned at any kind and passage of time cannot invest legality upon a void order.
19. Following the dictum laid down by the Honourable Supreme Court of Pakistan, the Division Bench of Karachi High Court in a judgment reported in 2001 CLC 1825 (Miss Reeta versus Government of Sindh and others) has observed that even where a decree has been passed in contravention of the provisions of law, the same would be treated as a nullity and against such decree no limitation would run.
20. The powers of judicial review in the writ of certiorari by this Court would always be exercised where there is a defective exercise of jurisdiction by the Courts below; the defective exercise of jurisdiction would always mean that the Courts below have acted in grave and obvious disregard of material provision of law.
21. The Honourable Supreme Court of Pakistan in a judgment reported in PLD 2013 Supreme Court 255 (Muhammad Anwar and others versus Mst. Ilyas Begum and others) while discussing the scope of Article 199, has observed that where the order passed by the revisional Court is in violation to express provisions of law. High Court can always interfere while exercising its authority in terms of Article 199 of the Constitution. The Courts are not to pass the orders of their liking, solely on the basis of their vision and wisdom, rather they were bound and obliged to render decisions in accordance with law. Where the order passed by the Court is in violation of express provisions and spirit of law, High Court in its extra ordinary constitutional jurisdiction would not allow that order to remain intact as the same would cause prejudice and serious breach of legal rights of the litigants; and therefore, High Court in its constitutional jurisdiction could always rectify the illegality and violation of law and undo the harm caused by orders of the Court. It is further observed that where the impugned act/order is completely without jurisdiction and patently illegal, it is not essential to avail the alternate remedy. The Full Bench of this Court in a judgment reported in PLD 1996 Lahore 672 (Messrs Chenab Cement Product (Pvt) Ltd. and others versus Banking Tribunal, Lahore and others) has observed that the power of judicial review would always be available even if the alternate remedy is availed provided the impugned act cannot be countenanced in law. In the present case, both the sub-ordinate Courts have not considered the impact of Section 10(2)(XV) of the NHA Act, 1991 while burdening the petitioner with the liability on the basis of minutes of the meeting which can never have an over-riding effect over the mandate of law.
22. The constitutional jurisdiction of this Court can always be exercised where the tribunal has acted without or in excess of jurisdiction.
23. For what has been discussed above, this writ petition is accepted. The impugned orders dated 28.07.2005 and 29.11.2005 are declared to have been passed without lawful authority and a result of defective exercise of jurisdiction. The Respondent No. 6 is at liberty to recover the remaining decretal amount from Respondents No. 1 to 5 according to the mandate of the Judgment and Decree dated 21.01.2002.
(R.A.) Petition accepted
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