Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Times Institute (Al-Syal Education Trust) VS Respondent: Federation of Pakistan through JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Shan Gul Title:Times Institute (Al-Syal Education Trust) vs Federation of Pakistan through
JUDGMENT
Reported As: 2021 LHC 7560 Result: N/A Judgment JUDGMENT MUHAMMAD SHAN GUL, J.- Through the present judgment the following constitutional petitions are sought to be decided: 1. In Writ Petition No.19914 of 2014 titled "Times Institute (Al-Syal Educational Trust) vs. Federation of Pakistan etc" it has been prayed that the impugne d letter dated 19.12.2019 and notice 24.12.2019 issued by the National Highway Authority may very kindly be declared illegal and be set aside and that the respondents be restrained to take any coercive measures/cutting of road approach for recovery of any charges till final outcome of this petition. 2. In writ Petition No.5186 of 2021 titled "is Roomi Fabrics vs. Federation of Pakistan etc" it has been prayed that the letter dated 08.03.2021 issued by the National Highway Authority with regard to obtaining No Objection Certificate and payment of ARC (Approach Rental Charges) may kindly be declared to be illegal and void. 3. In writ petition No.9554 of 2017 titled "lltasood Anwar vs. National Highway Authority etc"it has been prayed that the act of respondent No.1, National Highway Authority in increasing the Rental Charges and imposition of rate of Rental Charge of urban area instead of rural area demanding through recovery notice dated 19.05.2017 may kindly be set aside. 4. In Writ Petition No.10435 of 2021 "Al-Burhan Filling Station etc vs. Federation of Pakistan etc" the petitioners have prayed that impugned decision taken by respondent No.2 National Highway Authority , in its 326th meeting held on 17.10.2019 conveyed through notices (annex-D, D/1, D/2 and D/3) may graciously be set aside and the respondents be restrained to take any coercive measures against the petitioners. 5. In Writ Petition No.3975 of 2021 titled "Zafar Ahmad vs. National Highway Authority etc" the petitioner has prayed that the impugned notices (annex.E, E/1 & E/2) issued by National Highway Authority for getting No Objection Certificate and payment of Approach Rental Charges may kindly be declared to be illegal and that the
---
## Page 2
respondents be restrained to adopt any coercive measures against the petitioner for recovery of Approach Rental Charges. 6. In Writ Petition No.17869 of 2019 titled "Jamil Ahmad v. Federation of Pakistan and National Highway Authority etc" it has been prayed that impugned decision taken by respondent No.2, Chairman National Highway Authority through letter dated 25.10.2019 may graciously be set aside by declaring the same as illegal and that respondents be restrained to take any coercive measures against the petitioner for recovery of impugned charges. 7. In Writ Petition No. 15252 of 2020 titled " Jamil Ahmad vs. Govt. of Pakistan through Secretary Ministry of Communication etc" it has been prayed that impugned notice dated 08.10.2020 charging levy as well as increase in approach rental charges, may graciously be set aside. 8. In Writ Petition No. 4021 of 2021 titled "Roomi Industries (Pvt.) Ltd v. Govt. of Pakistan through Secretary Ministry of communication etc" it has been prayed that notice dated 08.03.2021 by demanding NOC fee and Approach Rental Charges may very kindly be declared as illegal and that the respondents be restrained to take any coercive measures against the petitioner . 9. In Writ Petition No.18654 of 2019 titled "Sardar Saqib Qureshi vs. Federation of Pakistan etc" it has been prayed that the impugned notice dated 21.11.2021 issued by respondents may kindly be struck down and may be declared to be illegal and without lawful authority . 10. In Writ Petition No. 4628 of 2021 titled "is Blessing filling station etc vs. Federation of Pakistan etc" it has been prayed that the decision taken by respondent No.2 in its meeting held on 17.10.2019 conveyed through letter dated 25.10.2019 may very graciously bet set aside and that the increase in approach rental charges be declared as nullity in the eye of law as the same has been made without any lawful authority . 11. In Writ Petition No. 1999 of 2019 titled "is Seven Star Petrol Pump PSO v. National Highway Authority etc" it has been prayed that impugned notice dated 27.12.2019 issued by respondent No.6 be declared as null and void. 12. In Writ Petition No.17778 of 2019 titled "Rana Abdul Jabbar etc vs. The Nation al Highway Authority etc" it has prayed that the decision taken in its 326th meeting held on 17.10.2019 conveyed through letter dated 25.10.2019 may be set aside by declaring the same as illegal, void, without due process of law in violation of National Highways and Strategic Road Control Rules as amended in 2002 and Regulatory Framework & SOPs' for preservation and commercial use of National Highway Authority Right of Way (Right of Way) 2002 and that increase in approach rental charges be declared as nullity in the eyes of law . 13. In Writ Petition No.21 1 of 2020 titled "Waqar Hussain vs. Secretary Ministry of Communication Islamabad, etc" it has been prayed that the speaking order passed by respondent No.2 and impugned public notice issued by respondent No.4 may very graciously be set aside by declaring the same as illegal and void. 14. In Writ Petition No.19717 of 2019 titled "Nishat Ahmad Khan etc vs Federation of Pakistan etc, it has been prayed that the decision taken in its 326th meeting held on 17.10.2019 conveyed through letter dated 25.10.2019 may very graciously be set aside by declaring the same as illegal, void, without due process of law in violation of National Highways and Strategic Road Control Rules as amended in 2002 and Regulatory Framework & SOPs' for preservation and commercial use of National Highway Authority Right of Way (ROW) 2002 and that increase in approach rental charges be declared as nullity in the eye of law . 15. In Writ Petition No. 88 of 2020 titled "is Fazal Cloth Mills vs Federation of Pakistan etc" it has been prayed that the impugned letter dated 04.12.2019 and notice dated 27.11.2019 issued by National Highway Authority may be declared, illegal unlawful and against the fundamental rights of the petitioner . 16. In Writ Petition No.15 of 2020 titled "Muhammad Saleem vs. G.M. National Highway Authority etc". it has been prayed that impugned notice issued by respondent No.3 may graciously be cancelled being illegal. 17. In Writ Petition No.14248 of 2020 titled "Arslan CNG Station vs. Govt. of Pakistan etc" it has been prayed that impugned notice dated 08.10.2020 annex-B1 speaking order passed by respond ent No.2 and impugned notice issued by respondent No.4 may be set aside by declaring the same as illegal void and without due process of law . 18. In Writ Petition No. 15253 of 2020 "Alif Laam Meem CNG vs. Govt. of Pakis tan etc" it has been prayed that impugned notice dated 08.10.2020 annex-B1 speaking order passed by respond ent No.2 and impugned notice issued by respondent No.4 may be set aside by declaring the same as illegal void without due process of law .
---
## Page 3
19. In Writ Petition No.13129 of 2021 titled "Lal Khatak Petroleum Service PSO vs. Federation of Pakistan, etc" it has been prayed that the decision taken in its 326th meeting held on 17.10.2019 conveyed through impugned notice (Annex-D) may be set aside by declaring the same as illegal, void, without due process of law in violation of National Highways and Strategic Road Control Rules as amended in 2002 and Regulatory Framework & SOPs' for preservation and commercial use of National Highway Authority Right of Way (ROW) 2002 and that increase in approach rental charges be declared as nullity in the eyes of law . 20. In Writ Petition No. 16193 of 2021 titled "Sanwal Filling Station vs. Federatio n of Pakistan, etc. it has been prayed that the decision taken in its 326th meeting held on 25.10.2019 conveyed through impugned notice (Annex- D & D/1) may be set aside by declaring the same as illegal, void, without due process of law in violation of National Highways and Strategic Road Control Rules as amended in 2002 and Regulatory Framework & SOPs' for preservation and commercial use of National Highway Authority Right of Way (ROW) 2002 and that increase in approach rental charges be declared as nullity in the eyes of law . 21. In Writ Petition No. 5825 of 2020 titled "Ahmed Fine Weaving limited vs Govt. of Pakistan etc" it has been prayed that the decision taken by Executive Board of National Highway Authority dated 17.10.2019, 12.11.2019 and 24.10.2019 followed by the Notice dated 22.11.2019 may kindly be declared as illegal, null & void, without lawful authority . 2. All the afore-mentioned petitions have been filed to challenge, as is evident, decision of the Executive Board of respondent National Highway Authority taken in its 326 meeting held on 17.10.2019 and the consequent demand notices issued on various dates on the strength thereof and as highlighted in the earlier narrative. 3. A brief history why these petitions have been filed is necessary to understand the context, contours and circumstances involved and at stake. 4. The controversy in issue stems from imposition and collection of periodic Approach Rental Charges ("ARC") by the National Highway Authority (NHA) as a quid pro quo for using National Highway Authority Roads/Right of Way ("ROW") to access CNG Stations, Filling Stations, amenities in other building structures and similar utility outlets established (in some of the cases) on the private land of, and operated (in all cases) by , the petitioners. 5. National Highway Authority?s power to collect such Approach Rental Charges was initially assailed through Writ Petition 94/201 1 (reported as 2016 CLC Note 15 "Irshad Noor CNG Station through Proprietor v. National Highway Authority Islamabad and others through Chairman") where the petitioners asserted and claimed that (i) National Highway Authority could collec t such charges only once at the time of grant of No Objection Certificate and there is no provision in the National Highway Authority Act, 1991 ("the Act, 1991") or National Highways and Strategic Roads (Control) Rules, 1998 ("the Rules, 1998) allowing periodic charging of Approach Rental Charges and (ii) National Highway Authority has increased the rates of Approach Rental Charges arbitrarily . 6. This reported Judgment traced the legal basis and factual history of levy of Approach Rental Charges and periodic increase thereof. The honourable Judge upheld the power of the National Highway Authority to levy Approach Rental Charges at the time of grant of No Objection Certificate and also and importantly upheld its periodic charging on the basis of Section 10(2)(viii) & 10(2) (xiii) of the Act, 1991 read with Rules 8 & 12 of the Rules, 1998 and Regulatory Framework and Standard Operating Procedures for Preservation and Commercial Use of Right of Way, (ROW) - 2002 ("SOPs") framed by the Executive Board of Nation al Highway Authority and further endorsed the increase in rate of Approach Rental Charges by the said Executive Board. Paragraph 15 of this judgment states as follows: "15. Under the above mentioned powers of the National Highway Authority Act, 1991 and National Highway Authority Rules 1998, National Highway Authority 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 implemented its Policy 2002 for Preservation/Commercial use of Right of Way regarding establishment of filling/CNG Stations hotels/motels, restaurants, nurseries, factories, shops, khokhas, kiosks, hoarding boards, utility lines, etc.th
---
## Page 4
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 would solely rest with the National Highway Authority and the petitioners were not required to be heard before raising the rent rates/charges. 32. In view of what has been discussed above these writ petitions are dismissed." 7. A SECOND set of petitions were filed again decided by the honourable Lahore High Court Lahore and reported in and as (PLD 2019 Lahore 298) "Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad" challenging the vires of Rules 4, 8 & 12 of the Rules, 1998 and Chapter IV of SOP s (under which Approach Rental Charges are imposed) alleging the same to be ultra vires of the Act of 1991 i.e. the parent statute. 8. This court while noting with approval the statutory power of National Highway Authority to levy and collect Approach Rental Charges on the basis of various provisions of the Act, 1991 read with Rules 8 & 12 of the Rules, 1998 and SOPs upheld the vires of the challenged provisions: 16. In view of the above discussion, the Rules of 1998 and Regulations 2002 are held to be intra vires the provisions of the Act of 1991 as well as the Constitution and the petitions to this extent are devoid of any merits. However , some of the petitioners' claim that they are not covered by the said Rules but still notices have been issued to them demanding Approach Rental Charges, and some also alleged that the impugned demand is excessive and is not in conformity with the Rules and Regulations framed by the respondent- authority itself. To this extent, the matter is remitted to respondent-authority . The petitioners shall appear before the respondent-authority along with copy of this Court's order and file objections/replies. The respondent-authority shall provide opportunity of being heard to the petitioners and decide the matter strictly in accordance with law within thirty days, from the date of receipt of certified copy of this order , and shall not take coercive measures against the petitioners till decision of the notices already issued. If any of the petitioners is not covered by the impugned Rules/Regulations or impugned demand is exaggerated, their grievance shall be redressed strictly in accordance with law ." 9. Intra Court Appeals against the above Judgment (PLD 2019 Lahore 298) "Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad " were dismissed on 06.03.2019, against which CPLAs? No. 1581, 1582, 1583, 1584/2019 are pending before the honourable Supreme Court but no injunctive relief or stay orders have been passed by the honourable apex court. This court in (PLD 2019 Lahore 298) "Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad " directed the National Highway Authority to decide the following two grievances of the petitioners:- i. Case of the petitioners who claim that they are not covered by the Rules, 1998 , yet Approach Rental Charges were being demanded from them by the National Highway Authority & ii. Rate of Approach Rental Charges demanded is exorbitant and is not in conformity with Rules, 1998 & SOPs. But for these two questions all other issues raised were settled and the National Highway Authority was assigned the limited mandate and task to only decide these two questions and no more! 10. Apparently complying with the directions of this court, the National Highway Authority on 07.03.2019 held personal hearing in respect of eleven of the present petitioners (the others chose not to attend) and the Chairman National Highway Authority through order dated 07.03.2019 decided the issues. Relevant for the present purposes is what has been highlighted hereunder: Sr.# i.
ii.Issue Petitioners having their business operational before July, 1999 enquire about charging of No Objection Certificate fee and rentals. Rentals may be levied from the date of start of businessNational Highway Authority response. It was explained that such installations are liable to pay approach rentals w .e.f July , 1999 Subject to provision of No Objection Certificate from any relevant Government department as an evidence regarding establishment of amenities prior to July , 1999
---
## Page 5
and in case of purchase of business; it may be levied from the date of ownership of existing ownership of existing owner .If an amenity is established after July , 1999, then rentals will be applied from that date whereas No Objection Certificate will be charged as per current rate being in vogue. iii.
iv.
v.
vi.
vii.Some petitioners argued that as they have already obtained permission/ No Objection Certificates from respective TMAs/ District Authorities at the time of establishing their businesses. So why they obtain No Objection Certificates from National Highway Authority now . National Highway Authority has increased its No Objection Certificate & rental rates on very higher side, please compensate in these rates.
No Objection Certificate holders / Owners / dealers of OMCs requested for adjustment of paid amount by respective OMCs may be adjusted in their accounts.
The total outstanding amount may be allowed to be paid in installments considering the financial constraints of the petitioners.
National Highway Authority existing rates may be rationalized on the basis of criteria. Till finalization of the rates with the OCAC and CNGAs per Rule 3 of National Highways Strategic Roads ( Control) Rules 1998 as amended in 2002, no person is allowed to erect / construct permanent / temporary structure without the consent of the authority in writing within 220 feet ( 70 meters ) from the centerline of the nearby carriage. In addition , if an amenity is out of 220 feet but using approaches through dedicated roads to their amenities are bound to pay approach rental charges. The maintenance & up- keeping of existing road network is the responsibility of National Highway Authority . For this purpose, a dedicated Road Maintenance Account (RMA) is being maintained under RMA Rules to finance the maintenance activities through Annual Maintenance Plan (AMP). This account is funded from own receipts of National Highway Authority i.e Toll, Fines, (W eigh & Police Fines) & Right Of W ay related receipts. Therefore, in order to accommodate the inflationary trends, National Highway Authority has increased its rates to cater for increasing maintenance requirements as per approved procedure. Hence, request for compensation at this stage cannot be entertained. It was informed that OMCs as an interim arrangement are paying rentals to National Highway Authority till finalization of yearly approach rentals. National Highway Authority has already accounted for the period amount in respective accounts of NOC holders / dealers / owners, hence the request was accepted. As the matter involves financial implications, therefore, the request of the petitioners will be submitted before National Highway Authority Executive Board for decision to consider the request being the competent forum. National Highway Authority is already in the process of discussions with OCAC Oil Companies Advisory Council) and CNG Association in this regard. Fixing of rates on
---
## Page 6
Association, no coercive action may be taken against the petitioners / amenities.the basis of CPI ( Consumer Price Index) with effect from July , 2005 by taking rates of 2005 06 as the base rate for application of CPI to ascertain the yearly rentals w .e.f 2005-06 had already been deliberated upon through the Ministry of Communications. As and when the matter is decided it will be intimated to all stakeholders. No crevice action is being taken so far , hence demand was accepted.
viii.
ix.
x.National Highway Authority may advertise its rates and rentals in newspaper as publication for information of general public. The wording of recovery notices does not fulfill legal aspects. In addition, its tone is very harsh and threatening. Rates may be applied according to covered area / size of amenity especially in case of Hotels/ Motels etc.The request was agreed by National Highway Authority . As soon as an agreement regarding this reached. The revised rates will be published in news papers when ever revised, hence the demand was accepted. The notice be amended as per the advice of National Highway Authority Legal Wing. As per in vogue rates of 2009, No Objection Certificate fee and rental are being charged in respect of amenities such as Hotels/ Motels / Market/ Shops etc on the basis of area amenity having area up to 1 Kanal and amenity having area more than 01 Kanal. However , a revision is under consideration and proposal will be kept in account before finalization of rates.
11. A THIRD set of petitions [W.P No. 8067/2019 (Sajja d Ahmad etc. Vs. Govt of Pakistan etc.), W.P No. 8263/2019 (Rana Abdul Jabbar etc. Vs. Govt. of Pakistan etc.), W.P No. 9826/2019 (Rao Zia ur Rehman etc. Vs. Govt. of Pakistan )] challenging order dated 07.03.2019 of the Chairman National Highway Authority were filed. Vide order dated 12.09.2019 of this court, the matter was sent back and re-routed to the Exec utive Board of National Highway Authority for a decision. Vide order dated 12.09.2019 this Court disposed of all these petitions whereby upon petitioners? request matter was transmitted to the National Highway Authority Executive Board to treat the petitions as representations and decide the matte r strictly in accordance with law within seven days. Respondent/National Highway Authority filed an application for extension of time. Vide order dated 18.11.2019, this Court granted thirty days more to the National Highway Authority Executive Board . It may be mentioned here that the centra l and pivotal decision making body in the National Highway Authority is its Executive Board. 12. The Executive Board, after issuing notices of hearing to the petitioners heard them on 17.10.2019 and in its 326th meeting decided the following "relevant" issues:
Sr.No Objections of the Petitioners/NOC Holders(National Highway Authority Executive Board Decision) a. The last revision of rates by National Highway Authority 2009 without any consultation with stakeholders.Under Section 7 of the National Highway Authority Act, 1991, the management of the Authority vests Highway Authority in with the Executive Board, which is authorized to exercise all powers, functions and do all acts and things which are to
---
## Page 7
be done by the Authority . By exercising the powers under Section 7, 10 and 21 of the Act, National Highway Authority Executive Board approved rates in the year 2009. As per decision of the Lahore High Court in Irshad Noor CNG Station case referred herein below , hearing of petitioners /stakeholder is not necessary before enhancement of rates of Approach Rental Charges. The Board observed that in a reported case 2016 Note 15 Irshad Noor CNG Station etc Vs. National Highway Authority , wherein the challenge was made inter alia to the revised rates in the year 2009 which were approved by the National Highway Authority Executive Board in its meeting held on 19.01.2009, on the basis of which notices were issued to the said petitioners for payment of rental /charges. The Honorable Lahore High Court has decided the matter in favour of National Highway Authority , by holding in paragraph 22 of the above said judgment " From the above it is clear that power to enhance rent/changes have not been done in arbitrarily . It is also clear from the above that the law/ rules the authority to revise the rent rates / changers were solely rest with the National Highway Authority and the petitioners were not required to be heard before raising the rent rates/ charges ." It is also found by the Executive Board that the Honorable Lahore High Court Multan, Bench (in referred case- matter under consideration) PLD 2019 Lahore 298 "Jameel Ahmed and others Vs. Govt. of Pakistan", in paragraph 12 has observed that " As the respondent-authority has been established to manage, roads, therefore the roads assigned to the authority are to be managed and operated by the authority on the terms as it deemed fit by the authority . Therefore, Board cannot go beyond the mandate/ scope of the judgments of the Honourable High Court referred herein above. b. Basis of revision i.e. reach- wise total traf fic of North & South Bound is not based on ground facts rather it is arbitrary .Revision of rates for NOC Fee, Approach Rental Charges etc has been made on the basis of traf fic data on the road. These factors are built-in in the survey .
c. Existing rates should be rationalized on the basis of sound criteria.The Board has decided that existing rates for filling and CNG stations (based on traf fic volume) continued to be…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.