1998 PLP 419 (SCMR)

MUKHTAR AHMAD JUNEJO, J.

Leave to appeal is sought against a judgment, dated 21-5-1995 dismissing Intra-Court Appeal, No.585 of 1994 of the petitioner. Petitioner, a contractor, filed Writ Petition No.4747 of 1994 in Lahore High Court challenging registration of the contractors and operators with Pakistan Engineering Council. The petition was contested by respondent No.3/Pakistan Engineering Council constituted under Pakistan Engineering Council Act, 1976 (hereinafter mentioned as the Act). During hearing of the Writ Petition the main attack on behalf of the petitioner was against Bye-laws 3, and 4 of the Construction and Operation of Engineering Works Bye-laws, 1987 (hereinafter mentioned as the bye-laws) promulgated under section 25 of the Act. It was argued before, the High Court that section 8 of the Act exhaustively deals with functions of the Pakistan Engineering Council (hereinafter mentioned as the Council) and the same does not authorise the Council to perform functions of regulating and licencing of contractors, operators and firms. It was also urged in the High Court that the bye-laws relate to works of civil nature and exclude from its ambit works pertaining to other spheres of construction activity requiring engineering skill. Lastly, the Bye-laws were termed to be maliciously framed. A learned Single Judge in the High Court, under his judgment, dated 27-9-1994, dismissed the Writ Petition in limine. The dismissal was challenged in Intra-Court Appeal No.585 of 1994, which was also dismissed under the impugned judgment solely on the basis of judgment of this Court in the case of Pakistan Engineering Council and another v. Afzal Anwar Associates and another (1995 SCMR 802). Hence this petition. Mr. Zafarullah Khan, learned counsel for the petitioner reiterated the arguments made on behalf of the petitioner before the High Court. In support he cited the case of Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 Supreme Court 701). Mr. Abid Hasan Minto, learned counsel for the Council controverted the contentions raised on behalf of the petitioner and was of the view that section 8 of the Act was trot exhaustive and that other provisions in the Act covered the point at issue and that as held by this Court in the case of Pakistan Engineering Council v. Afzal Anwar Associates (1995 SCMR 802) bye-laws 3 and 4 are intra vires. It was pointed out to the learned counsel that preamble of the Act shows that the Act has to make provision for the regulation of the engineering profession and that registration contractors is not covered by the preamble to the Act. Learned counsel was of the view that preamble of an Act would not limit its scope. In the case of Pakistan Engineering Council (1995 SCMR 802) it was observed as below:-- "After having perused the provisions of the Act and taking cognizance of its purpose and objects we are clearly of the opinion that the Pakistan Engineering Council cannot perform its functions under section 8 of the Act satisfactorily and appropriately unless it is able to regulate the activities of all those who undertake professional engineering work and, therefore, not only the profession of engineering but also professional engineering work has been included within the scope and purpose of the Pakistan Engineering Council Act, 1975". In the case of Fida Hussain (PLD 1995 Supreme Court 701) it was observed as follows:

"....the Pakistan Engineering Council is vested with the functions to regulate the persons qualified to practise as professional engineers and consulting engineers and not persons who' are employed in the Government or semi-Government organisations". The views expressed in the aforesaid judgments require to be harmonised and reviewed as that scope of inconsistency is minimised to zero. Consequently, leave to appeal is granted to determine whether bye-laws 3 and 4 of the Bye-Laws, 1987 are intra vires of the Act and whether the Council is competent to undertake registration of the Contractors and perform those functions specified by the Bye-Laws, 1987, if the same are intra vires. A.A./M-45/S Leave granted.