Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Qaisar Abbas and another VS Respondent: Federation Of Pakistan, through Secretary JUDGMENT
Court Name: Islamabad High Court Judge(s): Aamer Farooq Title:Qaisar Abbas and another vs Federation Of Pakistan, through Secretary
JUDGMENT
Reported As: 2022 CLC 146 Result: Order accordingly Judgment JUDGMENT AAMER FAROOQ, J.---This judgment shall decide the instan t petition as well as W.P.No.1881 of 2020, W.P. No.31 1/2020, W.P. No.2479/2020, W.P. No.2001/2020 along with Crl. Orgl No.181/2020 in W.P. No.163/2020 as they entail common questions of law and facts. 2. The facts in brief are that Pakistan Railways entered into an agreement with M/s. T&T Employees Cooperative Housing Society (the Society) for providing public level crossing and approaching and maintenance of the same at KM 9/13-14 to KM 9/8-9 as class-II mann ed level crossing on GLRS-BOS Section by shifting level crossing No.7. Under the terms of the contract the administration of Pakistan Railways was to operate and maintain the Railway level crossing and the Society was to pay various charges in advance with respect to actual expenses incurred in keeping the level crossing operational; 20% pay of the gate keepers, contribution towards gratuity and leave allowance of the gate keepers; all the requisite sum were to be paid in advance which accordingly was done. The agreement was initially for a period of five years and was to come into use on the date of agreement i.e. 03.04.2015. The agreement further provided that Pakistan Railways has a right to change the classification of the Railway crossing and the Society was to keep the Railway Administration indemnified. There were other clauses ancillary to the main subject of the agreement. The referred agreement was acted upon and pursuant thereto the Society funded the construction of the level crossing; however , after its completion and the requisite certificates issued by the Railway Authorities it was not opened. Pursuant to the then prevailing policy of the Pakistan Railways No Objection Certificate (NOC) for shifting of the Railway unmanned L-Xing No.7 to new location as manned L- Xing (Golra-Fateh Jang Section) was also obtained. It was accordingly issued by the Circle Registrar on 05.12.2014 and the District Magistrate Islamabad Capital Territory , Islamabad on 18.12.2015. On 25.10.2018 the Divisional Signal Engineer , Pakistan Railways, Rawalpindi wrote to the Divisional Engineer-I, Pakistan Railways,
---
## Page 2
Rawalpindi that the essential work has been completed and the new level crossing is ready to be operational, hence the date be fixed for the same. When despite completion of all the formalitie s the needful was not done the Society approached the Office of Federal Ombudsman (Wafaqi Mohtisib) by way of a complaint against the Pakistan Railways. The said complaint was accepted on 7.11.2019 and the Pakistan Railways was recommended to open newly installed manned level crossing at KM 9/8-9 and involve the Civil Administration for ensuring the dismantling of the existing unmanned level crossing at KM 9/13-14 to up-grade/convert the same into a manned level crossing at their own. 3. Feeling aggrieved the Pakistan Railwa ys filed a review petition against the said order which was dismissed vide order dated 14.01.2020 and the earlier recommendations/findings were modified by observing that the Pakistan Railways may also seek support of the complainant, if needed, as offered by it and/ or to up-grade the existing unmanned level crossing at its own. Against the said recommendations repre sentation was filed before the President of Pakistan which also was rejected. In the referred back drop W.P. No.163/2020 was filed by the members of the Society against primarily Pakistan Railways seeking declaration that the petitioners are entitled to opening up of Class-I, manned level crossing at KM 9/13-14 to KM 9/8-9 and the failure on part of the respondents Pakistan Railways be declared as witho ut lawful authority . Similar petition was filed by one Mian Muhammad Hafeez, the petitioner in W.P. No. 311/2020 as owner of the property in the Society seeking the implementation of the letter of the Divisional Signal Engineer , Pakistan Railways, Rawalpindi dated 25.10.2018 whereby it was intimated to the Divisional Engineer-I, Pakistan Railways, Rawalpindi that all the signal portion work is complete and the level crossing is ready to open. The referred petitioner also sought implementation of the findings of Federal Ombudsman dated 07.11.2019; yet another petition was filed by members of the Society (W.P. No.1881/2020) against primarily Pakistan Railways seeking almost the same relief by way of direction to open the new level crossing and implementation of the recommendations of the Federal Ombudsman and also seeking a declaration that the reliance by Pakista n Railways with respect to the policy dated 23.02.2019 is ineffective. Pakistan Railways also instituted writ petition (W.P. No. 2001/2020) for seeking a direction against respondent No.1 for implementation of the agreement dated 03.04.2015 and obtaining requisite NOC/approval after which the new level crossing, could be opened with the assistance of the local administration. The local people of the area i.e. Moza Nagazi also instituted a writ petition challenging the agreement between Pakistan Railways and the Society (W.P. No.2479/2020). During the course of proceedings a number of applications were filed in the above writ petitions by people of the locality seeking impleadment. 4. Mr. Abuzar Salman Khan Niazi, learned counsel for the petitioners in W.P. No.1881/2020, inter alia, contended that the closure/non-opening of the new level crossing is in violation of Article 9 of Constitution of the Islamic Republic of Pakistan, 1973 (the Constituti on) inasmuch as it is the fundamental right of the members of the Society , in particular , and people of the area, in general, to have safe passage which is being denied by Pakistan Railways. In support of his contentions learned counsel has placed reliance on the case titled Naimatullah Khan Advocate and others v. Federation of Pakistan and others (2020 SCMR 622), Mirza Muhammad Nazakat Bain v. Federation of Pakistan and others (2020 SCMR 631), Ms. Shehla Zia and others v. WAPDA (PLD 1994 Supreme Court 693), Malik Ashiq Hussain v. Secretary , Pakistan Railways and others (2011 YLR 1228 ), Muhammad Tahir Jamal Advocate v. Government of the Punjab and others (PLD 2020 Lahore 407), Messrs Shaheen Cotton Molls Lahore and another v. Federation of Pakistan and others (PLD 2011 Lahore 120), Messrs Al Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs and others (2011 SCMR 1621 ), Maqbool Ahmed and others v. Secretary Revenue Department and others (2020 CLC 1151), Azra Jamali and others v. Federation of Pakistan and others (2017 PLC (C. S.) 533), Muhammad Shoaib Razzaq v. Federation of Pakistan and others (PLD 2019 Islamabad 339), Government of Sindh and others v. Mst. Najma (2001 SCMR 8), Dr. Shamsher All Khan and others v. Government of Khyber Pakhtunkhwa and others (2019 MLD 87), Province of Punjab and others v. Malik Shah Nawaz and others (2012 MLD 1045 ), Makhdoom Muhammad Mukhtar MPA, Punjab v. Province of Punjab and others (PLD 2007 Lahore 61), Abdul Wahid v. The State and another (PLD 2007 Lahore 65), Muhammad Nawaz Malik and others v. Government of the Punjab and others (PLD 2001 Lahore 160), Ahmed Kamal Nasir v. Cantonment Board
---
## Page 3
Rawalpindi (PLD 2011 Lahore 165), National Bank of Pakistan v. Iftikhar Rasool Anjum and others (2017 PLC (C. S) 453), Zahir Hussain Qureshi v. Government of Sindh and others (2019 CLC 1568 ), Muhammad Ashraf v. United Bank Limited and others (2009 CLC 1250), Messrs Airport Support Services v. The Airport Manager and others (1998 SCMR 2268 ), Zaver Petroleum Corporation Limited v. Federation of Pakistan and others (2018 CLC 1542 ), Federation of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 Supreme Court 1026 ), Government of Khyber Pakhtunkhwa and others v. Khalid Mehmood (2012 SCMR 619), Pakistan through Ministry of Finance and others v. Facto Belarus Tractors Limited (PLD 2002 Supreme Court 208), Messrs M. Y. Electronic and others v. Government of Pakistan and others (1998 SCMR 1404 ), Federation of Pakistan and others v. Muhammad Tariq Pirzada and others (1999 SCMR 2744 ), Federation of Pakistan and others v. Muhammad Tariq Pirzada and others (1999 SCMR 2189 ); Messrs Sharif Khan Brothers v. Chief Controller and others (2001 YLR 2211) and Shahid Nabi Malik v. Chief Election Commission ( PLD 1997 SC 32 ). 5. It was contended that the assertion on part of the Pakistan Railways that as per the policy of 2019 NOC is required from the District Management of Punjab/Rawalpindi for opening of the new level crossing is not tenable inasmuch as it is the fundamental right of the petitioners to have unrestricted access which is being denied by policy consideration. It was added that the fundamental rights can be reasonably regulated but cannot be eradicated or eliminated by way of policy . Reliance was placed on the case titled Messrs Shaheen Cotton Molls Lahore and another v. Federation of Pakistan and others (PLD 2011 Lahore 120), Messrs Al Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs and others (2011 SCMR 1621 ), Maqbool Ahmed and others v. Secretary Revenue Department and others (2020 CLC 1151), Azra Jamali and others v. Federation of Pakistan and others (2017 PLC (C. S.) 533), Muhammad Shoaib Razzaq v. Federation of Pakistan and others (PLD 2019 Islamabad 339). It was contended that it was legitimate expectations of the petitioners as well as other members of the. Society and local people that upon completion of the work at new level crossing the same shall be opened which is being denied, hence not tenable. Reliance was placed on the case titled Dr. Shamsher Ali Khan and others v. Government of Khyber Pakhtunkhwa and others (2019 MLD 87), Province of Punjab and others v. Malik Shah Nawaz and others (2012 MLD 1045 ), Makhdoom Muhammad Mukhtar MPA, Punjab v. Province of Punjab and others (PLD 2007 Lahore 61), Abdul Wahid v. The State and another (PLD 2007 Lahore 65), Muhammad Nawaz Malik and others v. Government of the Punjab and others (PLD 2001 Lahore 160), Learned counsel further submitted that the petitioners are protected by the doctrine of sovereign guarantee. Reliance was placed on the case titled National Bank of Pakistan v. Iftikhar Rasool Anjum and others (2017 PLC (C. S) 453). It was further contended that the agree ments with the State Institutions are enforceable under Article 199 of the Constitution. Reliance was placed on the case titled Zahir Hussain Qureshi v. Government of Sindh and others (2019 CLC 1568 ), Muhammad Ashraf v. United Bank Limited and others (2009 CLC 1250), Messrs Airport Support Services v. The Airport Manager and others (1998 SCMR 2268 ). It was further submitted that Pakistan Railways is seeking to apply 2019 policy which is not applicable in the case of the petitioners inasmuch as the agreement between the parties was executed in the year 2015 and essentially completed in 2018 and it is due to unlawful act of Pakistan Railways by not opening of the same that the matter is lingering on, hence at this stage retrospective application of the policy on obtaining NOC is not tenable. Reliance was placed on the case titled Zaver Petroleum Corporation Limited v. Federation Pakistan and others (2018 CLC 1542 ), Federation of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 Supreme Court 1026 ), Government of Khyber Pakhtunkhwa and others v. Khalid Mehmood (2012 SCMR 619). It was contended that the Pakistan Railways is estopped now from wriggling out of the binding agreement. It was added that the order of the Federal Ombudsman is binding and conclusive finding was handed down not only by Federal Ombudsman but also the President of Pakistan and the matter stands finally decided. Reliance was placed on the case titled Pakistan through Ministry of Finance and others v. Facto Belarus Tractors Limited (PLD 2002' Supreme Court 208), Messrs M. Y. Electronic and others v. Government of Pakistan and others (1998 SCMR 1404 ). Finally , it was contended that lower rights have to yield in favour of
---
## Page 4
higher rights. Reliance was placed on the case titled Shahid Nabi Malik v. Chief Election Commission (PLD 1997 SC 32 ). 6. Mr. Abdul Wahid Qureshi, learned counsel for the petitioner in W.P. No.163/2020 and W.P. No.31 1/2020 adopted the arguments by learned counsel for the petitioner in W.P. No.1881/2020 but added that the policy cannot be applied retrospectively in this case inasmuch as the agreement between the Pakistan Railways and the Society stands acted upon and the matter has become a past and closed transaction. Reliance was placed on the case titled Mian Rafi ud Din and others v. The Settlement and Rehabilitation Commissioner and others (PLD 1997 SC 252), Hashwani Hotels Ltd. v. Federation of Pakistan and others (PLD 1997 SC 315), Secretary to Government of Pakistan v. Muhammad Hussain Shah and others (2005 SCMR 675), Manzoor Ali and others v. UBL through President (2005 SCMR 1785 ), Imtiaz Ahmed and others v. PPSC and others (PLD 2006 SC 472), Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa (2015 SCMR 43), Zever Petroleum Corporation v. Federation of Pakistan and others (2018 CLC 1542 ), Shafqat Hussain v. President of Islam ic Republic of Pakistan (PLD 2016 Islamabad 1), Dewan Suleman Fiber v. Federation of Pakistan and others (2015 PTD 2304 Islamabad), Irfan Khan Banghash v. Government (2015 YLR 719), Muhammad Ali v. LDA and others ( 2017 YLR 1087 ) and Muhammad Ibrahim v . Province of Sindh (2017 PLC (C.S.) 7). 7. Learned counsel for Pakistan Railways argued somewhat different from what was pleaded in W.P. No.2001/2020. He argued that the agreement between Pakistan Railways and the Society cannot be implemented as the requisite precondition of obtainin g NOC prior to conclusion of the level crossing was not done. It was submitted that the Pakistan Railways is ready and willing to refund the amount in question i.e. the sum incurred by the Society for construction of the new level crossing. It was submitted that in the referred back drop in accordance with the policy of 2019 NOC was essential; since the same has not been done the matter cannot proceed further . 8. Learned counsel for the residents of the locality Moza Nagazi submitted that tbc agreement between the Pakistan Railways and the Society is in violation of their rights as the path has been used by the residents of the locality since long, hence they cannot be deprived of the said right. 9. Mr. Riaz Hanif Rahi, Advocate for the Society in some of the petitions, inter alia, contended that Pakistan Railways is denying the opening of level crossing due to extraneous reasons which is not tenable and they are bound to implement the agreement. 10. Mr. Sajeel Sheryar Swati, Advocate for the Society , inter alia, contended that the policy dated 23.02.2019 is being sought to be implemented at this juncture when the matter between the Society and Pakistan Railways has become past and closed transaction. It was contended that it is trite law that retrospective operation of the policy cannot be made. It was further contended that at the relevant time the Railway policy applicable was of 17.12.2009 and under the same only to dismantle an unmanned level crossing NOC was required which accordingly has been done and the assertion that has been made by Pakistan Railways that it does not fall within the domain of District Administration Islamabad Capital Territory is without any justification or basis. It was further pointed out that in the proceedings before the august Apex Cour t Pakistan Railways has tendered a report categorically submitting that in future all unmanned level crossing shall be up-graded to manned level crossing. 11. During the course of hearing a numb er of applications were filed. C.M. No.2357/2020 and others on behalf of the residents of the locality seeking implementation however , no formal order was passed therein but the applicants were asked to make submissions which they accordingly did. 12. Mr. Taimoor Aslam Khan, Advocate in C.M. No.2476/2020 submitted that the residents of the locality have locus standi in the matter inasmuch their long standing right of passage is being adversely affected by closure of unmanned level crossing and opening of new manned level crossing. It was contended that the agreement was entered into by the Society with the Pakistan Railways without keeping in view the rights of the locality which is not tenable. 13. Mr. Iftikhar Ahmad Bashir , Advocate and Mr. Muhammad Asif Chaudhary , Advocate Supreme cow in C.M. No.2357/2020 adopted the arguments by learned counsel in the other applications. 14. Arguments advanced by the learned counsel for the parties have been heard and the documents placed on record examined with their able assistance.
---
## Page 5
15. The factual background leading to filing of all the petitions has been mentioned with brevity hereinabove, therefore, need not be reproduced. It is an admitted position that in the complaint filed by the Society recommendations were made by the Federal Ombudsman in favour of the Society; in review findings were slightly modified; however , the matter attained finality by way of findings / recommendations of the President of Pakistan in the representation filed by Pakistan Railways. Since the entire matter hinges upon the rights of the parties i.e. Pakistan Railways and the Society in opening or non-opening of the railway crossing it is worthwhile to reproduce the final recommendations of the Preside nt of Pakistan in representation of Pakistan Railways dated 15.06.2020 which are as follows: "The perusal of the Agreement dated 03.04.2015 reveals that shifting, operation and maintenance of the manned level crossing No.7 from KM 9/13-14 Golra-Basal Section was primarily the responsibility of the Agency . Clause 3 of the Agreement categorically envisages that "level crossing will be deemed to have come into use on and from the date of agreement signed ... and all charges ... shall be paid by T&T ECHS from the date onwards." Admittedly , the complainant has procured/provided the requisite NOC of the local administration and has deposited a sum of Rs. 21,540,777/- on account of the charges prescribed under the Agreement The Agency , on its part has completed the civil/signal work on the manned level crossing at KM 9/8-9 and is now responsible for its maintenance/operationalization which obviously entails/ includes all measures/ steps required to be taken for peaceful/uninterrupted use of the passage. The conditions of the agreement indeed stand fulfilled by either of the parties except its operationalization. There is no denial of the fact that agreement dated 03.04.2015 is intact and binds the parties. Therefore, the Agency cannot avoid its official/ contractual obligations and blame the complainant who neither have the authority nor the capacity in that regard. Similarly , it cannot burden the complainant with additional/ extra expenditure for maintaining / up gradation of unmanned level crossing at KM 9/13-14 or for any other alternative which is not envisaged / provided under the Agreement dated 03.04.2015. It is, however , also relevant to note that the complainant vide his application dated 04.02.2014, seeking shifting of the unmanned level crossing No.7 from KM 9/13-14 to KM 9/8-9, had statedly mentioned that the proposed site was less than 500 meters away from the existing site and that this will not only benefit the Society but also provide safe and secure crossing to the people of the adjoining areas as well. Furthermore with the presen ce of society's full time security guards, the crossing will be monitored effectively and efficiently . According, he does carry an obligation to assuage the concerns of the locals of the adjoinin g. Abadis and take all steps, necessary to facilitate them with the use of the alternate level crossing without any reservation or restriction. Therefore, in view of the respective positions of the parties under the agreement dated 03.04.2015 and the categoric undertaking of the complainant vide application dated 04.02.2014, the revised decision of the W afaqi Mohtasib is well justified and is unexceptionable. 8. The Honourable President of Pakistan has been pleased to reject the instant representation of the Agency in the above terms with the caveat that the complainant shall not create any hindrance for the people of the adjoining areas from using the manned level crossing No.7 at KM 9/8-9 in any manner . Compliance/ implementation now to be reported to the W afaqi Mohtasib's Secretariat within 30- days of the receipt of this Order ." 16. In essence the revised decision of the Federal Ombudsman has been maintained by the Office of President of Pakistan in representation of the Pakistan Railways. The main stance of the Pakistan Railways is that in light of the policy of Pakistan Railways dated 23-2- 2019 and under clause 6 of the same the shifting of unmanned level crossing can be done into a manned level crossing provided an NOC is required to be obtained from the District Authorities and approval of Chief Executive Officer/Senior Manager before doing the needful. The date of the policy is 23.02.2019 which of course came into existence after the agreement between the Pakistan Railways and the Society i.e. 05.04.2015. In 2018 all the formalities with respect to the construction of signal work were completed hence at this stage referring to the policy of 2019 by Pakistan Railways is not tenable. The case law relied upon by the learned counsel for the petitioners that a policy does not operate retrospectively and cannot undo past and closed transaction are instructive. Reliance is placed on the case titled Zaver Petroleum Corporation Limited v. Federation Pakistan and others (2018 CLC 1542 ), Federation of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 Supreme Court 1026 ), Government of Khyber Pakhtunkhwa and others v. Khalid Mehmood (2012 SCMR 619). In Syed Muhammad Ali v. LDA and others (2017 YLR 1087 ) the Hon'ble Lahore
---
## Page 6
High Court while citing previous case law on the subject observed that policy decisions by Executive unless beneficial cannot be applied retrospectively . 17. Since the rights and obligations and the relevant law applicable in the case of the Society and the Pakistan Railways would be what existed in 2015 hence the requirement on part of the Pakistan Railways to have a fresh NOC is uncalled for and without lawful authority . In W.P. No.2001/2020 it is surprising to observe that Pakistan Railways instead of assailing the decision of the President of Pakistan has asserted that the Society be directed to obtain fresh NOC pursuant to policy dated 23.02.2019. The referred prayer on part of the petitioner is not tenable inasmuch as the Society is a registered Society incorporated under the relevant law; however , is not a person within the meaning of word as provided in Article 199 of the Constitution inasmuch as it does not carry out the affairs of the Federation, Provincial Government or Local Authorities as such. Hence, the petition on that account is also not maintainable, in addition to the observations made with respect to enforcement of the policy dated 23.02.2019. Moreover , in C.M.A. No.58/2020 in Human Rights Case No.13316-P/2018 (In the matter of colossal losses incurred by Pakistan Railways) the Pakistan Railways submitted the following report: "Measures to Control/ Minimize Accidents on Leave Crossines: i) That in compliance of the orders of the Honourable Supreme Court of Pakistan, Pakistan Railways is taking all possible measures to control/ Minimize the illegal crossings over Railway lines to safeguard the precious life of general public within its available resources. Railway administration has conduc ted a joint survey with Railway Police for identifying the locations, having high tendency of illegal trespassing over the entire system and on the basis of the survey data, all possible measures have been taken or being taken in order to minimize such illegal paths. ii) During this exercise more than two thousand (2000) unauthorized crossings have been closed. In addition to that, height gauges are also being fixed at un-manned level crossings to control the movement of heavy traffic which more often get stuck inside the railway track and eventually lead to serious accidents, carrying an irreparable loss to the human lives and substantive damage to rolling stock. Moreover , track guards have also been deployed at most vulnerable un-manned level crossings as an added safety measures. It is also imperative that all the un- manned level crossings will be eliminated by constructing…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.