' MUHAMMAD MUZAMMAL KHAN, J.---This judgment proposes to decide instant Constitutional petition along with Writ Petitions Nos.12693 of 2004, 2078 of 2004/RWP, 2705 of 2004/RWP, 2725 of 2004/RWP, 2853 of 2004/RWP, and 2941 of 2004/RWP, as all these petitions challenged same action of the respondents and raised similar questions of law/facts. All the petitioners challened the legality of orders conveyed through Letters Nos.8(1)/NHA/GM(OPS)/2004/ 2045,8 (1)/NHA/GM(OPS)/2004/2046, 8(1)/NHA/GM(OPS)/2004/2065, 8(1)/NHA/GM(OPS)/2004/2066, 8(1)/NHA/GM(OPS)/2004/2088 and 8(1)/ NHA/GM(OPS)/2004/2092 based on letters, dated 24-6- 2004 issued by the Ministry of Communications and prayed the same to be declared illegal, void and of no legal consequence, whereby respective leases of the petitioners were ordered to be cancelled.
2. Precisely, relevant facts for disposal of all the above referred petitions are that National Highway Authority, a body corporate constituted under the National Highway Authority Act XI of 1991, as amended in 2001 whose affairs, administrative/ministerial vest in Executive Board, headed by Chairman with designation of Chief Executive in pursuance of section 9 of the Act and its policy guidelines for tolls and commercial use of ROW (Right of Way) were approved by NHA Executive Board in its 92nd meeting held on 15-3-2000 and the Control Rules, in this behalf, were approved in its 104th meeting on 29-5-2002. In this manner, NHA was empowered to implement its policies for preservation/commercial use of ROW regarding establishment of filling/CNG stations, hotels/motels, restaurants, nurseries, factories, shops, khokhas, kiosks, hoarding boards, utility lines etc. Section 10(2)(xiii) of NHA Act, 1991 empowered the NHA to raise funds (local and foreign) through borrowing, floating of bonds, sharing or leasing of assets or any other means from time to time. Similarly, rule 14 of the National Highways and strategic Roads Control Rules, 1998 as amended in 2002 empowered the Authority to lease the Government lands for establishment of movable properties like nurseries, kiosks, khokhas, vendor stalls etc. And for issuance of such-like licences and entering into lease agreements for the construction or use by private persons. NHA having been equipped with the statutory powers through its Chairman and General Manager (Operations) decided to utilize the Road Assets available to it for generating/collecting revenue through licenses for construction of the approach roads, installation of filling/CNG stations and leasing of the available land of the ROW. The income collected through these measures wherein all the NOC fees, lease charges, approach and ground rental charges, administrative and other revenues generated from commercial use of ROW is channelled into Road Maintenance Fund Account of NHA. With this background, in order to achieve those objectives, NHA invited applications from general public through advertisement in all the leading newspapers throughout Pakistan for installation of filling and CNG stations on National Highways network spreading over 1800 kilometers N-5 from Karachi to Peshawar in November, 2001 and onward.
3. Petitioners in all the petitions in response to above referred advertisements, applied to the Chairman NHA for lease of different pieces of land for establishing filling/CNG stations etc., on different points and they submitted bank guarantees as security deposits, paid the demanded registration/NOC fees, deposited the required amounts for lease expenses and also completed all the codal formalities. All the applications for grant of leases were processed for a long period of two years through a transparent and open process. Respondents after completing all the requirements, ultimately approved the respective leases in favour of the petitioners and approval as required from the Chairman NHA was granted and was conveyed to them through official correspondence. The lease money was deposited and lease agreements were duly signed between the petitioners and NHA, where under, the lessees entered into possession of the lands leased out to them and a few of them had also raised certain constructions for raising of proposed sites. The process of the leases was complete on delivery of possession of the leased parts of the properties when Ministry of Communications unilaterally decided to cancel all the already completed leases by cancelling lease agreements without pointing out any fault on part of the lessees, without assigning any lawful reason for the decision taken, without issuing notice to the lessees and without providing them an opportunity of hearing through the letters under challenge before this Court, detailed above.
4. In all the Constitutional petitions, it is claimed that cancellation order by the Ministry of Communications is bad at law, as the same was claimed to have been motivated under political pressure and for considerations alien to law/norms of natural justice. It was also asserted by the petitioners that NHA is an autonomous authority controlled and administered by a law, wherein Ministry of Communications does not figure anywhere for an action like the one taken against them. According to the petitioners, lease once completed could not have been rescinded except for the reasons detailed in the lease deeds or on account of any default on part of the lessees and since the petitioners did not violate the terms of the lease, action complained was unwarranted, having been taken unilaterally, without notice and hearing them. It was further emphasized on behalf of the petitioners that impugned action of Ministry of Communications is violative of their fundamental rights warranted by the Constitution of Islamic Republic of Pakistan, 1973 and the principles governing the subject, settled through dictates on the basis of stare decisis. Rule of locus poenitentiae was also pressed into service, as according to them, completed transactions which were acted upon, could not have been rescinded earlier to the period for which those were sanctioned. The letters impugned were also challenged being violative of terms and conditions between the parties as laid down in the concluded lease agreements.
5. All the petitions were opposed by Mr. Jehanzeb Khan Bharwana, Advocate for NHA, who was accompanied by Muhammad Younas Chaudhry, Director Legal NHA and by the learned Deputy Attorney General on behalf of the Ministry of Communications, refuting the , arguments of the petitioners with the submissions that lessees had no vested right in the property which was owned by the Federal Government, who in its discretion cancelled all the leases without any exception, hence the petitioners have no right to maintain Constitutional petitions, as the decision, impugned related to policy matter. It was further urged that possession of the leased parts of Federal Government land has not been taken over by the lessees so far, 'hence all the principles invoked by them are not applicable.
6. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, general directions, administration, management and affairs of NHA vest in its Executive Board, which is governed by NHA Act XI of 1991 and Control Rules, 1998 as amended up-to-date and it through 92nd meeting, dated 15-3-2000 and 10th meeting, dated 29-5-2002 empowered the NHA to implement its policies of preservation/commercial use of ROW regarding establishment of filling/CNG stations etc. In the entire framework of the Act (ibid) or the Rules above referred, Ministry of Communications does not figure anywhere to take action of cancellation/rescission of acts done by the NHA. The question which hinges for determination is when an authority is not conferred with any power, could it embark upon to annul the lawful actions taken by the competent statutory functionary. In order to examine the legality or otherwise of the action by the Ministry of Communications, Government of Pakistan through letters impugned, I can with advantage refer to Administrative Law by H.W.R.
Wade and C.F. Forsyth, Seventh Edition, wherein under' the heading of Power in the wrong hands, the author remarked in the following words:-- "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at lease in part, by the wrong authority and the resulting decision is ultra wires and void."
' Similarly, Halsbury's Laws of England, Fourth Edition, by Lard Hailsham of St. Marylebone, Volume-I, in Chapter "Administrative Powers", under the heading of. "Acting under dictation", remarked as below:-- "Acting under dictation.--- A body entrusted with a statutory discretion must address itself independently to the matter for consideration. It cannot lawfully accept instructions from, or mechanically adopt the view of another body as to the manner of exercising its discretion in a particular case, unless that other body has been expressly empowered to issue such directions or unless the deciding body or officer is a subordinate element in an administrative hierarchy within which instructions from above may properly be given on the question at issue."
' A Division Bench of Sindh High Court in the case of Haji Noor Muhammad v. Karachi Development Authority and others (PLD 1975 Karachi 373) while examining the Allotment Regulations framed by Karachi Development Authority, remarked about action of its Chairman, as below:-- "The K.D.A. Is a statutory authority and one of its functions is to prepare housing schemes, develop plots and give them to housing societies, individuals and construction companies. It was in compliance with its statutory duties that it had issued the scheme for allotment of plots and it was under that scheme that the petitioner had applied for and obtained a plot. This was thus not a case of simple agreement, but a performance of statutory obligation and function."
' In case of Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR (39) 1952 SC 16) Supreme Court of India while examining powers conferred by Rules framed under section 22 of the City of Bombay Police Act, held that the only person vested with authority to grant or refuse a licence for the erection of a building to be used for purposes of public amusement was the Commissioner of Police and this power could not be exercised by the State Government in place of the person authorized.
' In case of Taj Muhammad v. Town Committee, Fatehjang through Chairman and 3 others (1994 CLC 2214), this Court held that if a statutory functionary has been invested with certain power, it must be exercised by him uninfluenced by any other person after independent application of mind and his powers could not be exercised even by his superiors, in absence of specific delegation of powers, if conferred by the statute. The other relevant judgments on the subject are in the cases of Superintendent of Police, Special Branch, Karachi and others v. Abubakar and another (1972 SCMR 154), The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communications and Works Department, Lahore (PLD 1975 SC 355) and Barkat Ali and another v. Ch. Fazal Hussain and another (1989 CLC 1255).
7. The Honourable Supreme Court of Pakistan in the case of Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahpre and others (PLD 1990 SC 1070) graciously struck down order of the Minister for Consolidation for interference in a confirmed consolidation scheme under section 13 of the West Pakistan Consolidation of Holdings Ordinance, 1960 and held that under the law Minister for Consolidation had no jurisdiction or authority to pass any order in respect of consolidation scheme already confirmed under the law against which all the objections and judicial proceedings in the nature for appeals and revisions had already been exhausted and disposed of. It was further observed in the judgment that orders of the Minister of Consolidation was without jurisdiction and void ab intio. The statutory functionaries were held, alone could have interfered with the order challenged before them and the Minister being not one of those functionaries had no authority to intervene.
8. Besides absence of authority in the Ministry of Communications, let us examine the legal worth of cancellation of leases order, pronounced by it. Letter of Ministry of Communications No.9(2)/97- Roads-Vol. II reads as under:-- "Subject: Allotment of land by NHA for Pumps/CNG.-- I am directed to refer to the above subject and to state that in order to make the process of allotment of land by NHA for petrol pumps/CNG and other facilities more transparent the following steps be taken forthwith:--
(a) The further allotment of NHA land for above purpose be stopped till the new SOP is in operation.
The new SOP will be devised which will have legal cover as per law.
(b) The previous allotments will stand cancelled, however, the places where either the construction has been completed or is in progress the same will be reviewed by a Committee in the MOC about the fixation of its price having relevancy to the rates prevalent in the vicinity. The Committee will consist of Joint Secretary (II), Ministry of Communications, Representative of NHA, Representative of Motorway Police, Representative of viguance.
(c) The facilities which existed before the federalization of the roads and were supposed to be regularized should be processed for regularization within sixty days.
(d) The sites available for future allotment be identified after survey which will be disposed of through an open auction and wider publicity." (Underlining is mine to highlight observation applicable) The above reproduced decision of the Ministry of Communications clearly depicted that there was no reason mentioned for cancellation of the already concluded transactions, the lease holders were not given any notice earlier to taking this decision and they were not provided an opportunity of hearing and explaining their stance/position. With the background already detailed in factual part of this judgment, Rule of locus poenitentiae was fully attracted because completion of leases and taking over of possession by the petitioners is not disputed by any of the respondents and out of this process, vested rights of user and protection of leased properties accrued in favour of the petitioners which could not be defeated or taken away at their backs. The Honourable Supreme Court in the case of Muhammad Nawaz v. Federation of Pakistan and 61 others (1992 SCMR 1420) held that where a competent authority had competently passed the orders regularizing the service of certain officers and the same authority had confirmed the service of other officers which orders had taken effect and created valuable rights in favour of the persons mentioned in the said orders, cancellation of those by the Ministry of the Department was not valid as under the rule of locus poenitentiae the said order could not be cancelled.
' Alike dictum was propounded by the Honourable Supreme Court in the case of Pakistan International Airlines Corporation through Chairman v. Inayat Rasool (2003 SCMR 1128) and it was held that authority having power to make an order has also power to undo the same except when the order once having taken legal effect and created certain rights in favour of any individual and the same cannot be withdrawn or rescinded to the detriment of those rights.
' The Honourable Supreme Court reaffirmed earlier judgments in the case of Muhammad Zakir Khan v. Government of Sindh and others (2004 SCMR 497). Applying the judgments of the Honourable Supreme Court to the case in hand and if the impugned order are examined on the touchstone given therein, it will become manifest that on the one hand Ministry of Communications could not cancel the leases being not authorized by law, whereas on the other hand, such an action could have even been taken by NHA, who being the Sanctioning Authority could have done so, had the lease agreements been not acted upon and no right in favour of the lessees had been created there under. At the risk of repetition, it is observed that since the lessees had entered into possession of the leased parts of the properties and had raised certain constructions, action if at all, was .To be taken against them, the same could only be taken in terms of lease agreements reduced to writing between them.
9. From the above resume, law does not favour actions/orders/decisions to be taken at the back of the parties to be effected. Notice/hearing earlier to cancellation of concluded leases, was right of the lessees, which was denied, as observed above. Law on the subject is settled by this time, whereunder it is the mandate that principles of natural justice have to be read in every statute irrespective of the fact that no such provision is incorporated therein. One of the cardinal principles of natural justice is that no one should be condemned unheard. If law on this point is needed, a reference can be made to the cases of Mst. Sattan and others v. Group Captain Masroor Hussain, Officer Commanding P.A.F. Station Sargodha Cantt. (PLD 1962 Lahore 151), Mst. Abeda Begum v.
Government of Pakistan and others (1985 CLC 2859), Muhammad Tufail v. Government of Punjab 1990 MLD 327, Messrs Murree Brewery Company Limited v. Director-Geneial, Excise and Taxation and 3 others (1991 MLD 267), Gul Muhammad and 8 others v. Buxal and 2 others (1991 CLC 229) and Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408).
10. Under law, every Court or authority dispensing judicial or quasi-judicial functions is required to give reasons in support of its decisions/orders, especially when those deprive someone of his vested rights, but the Ministry of Communications through a sketchy, nonspeaking and unreasoned order took the action under discussion, which course was not permissible. Transactions in favour of the petitioners were concluded through transparent means and no one objected for those. The above reproduced decision of the Ministry has not pointed out as to why those leases were being cancelled and how the forthcoming transactions would be transparent. Such an order cannot sustain the scrutiny of judicial review if carried on the basis of provisions of section 24 of the General Clauses Act, 1897 and the judgments in the cases of Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) and Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another (PLD 2002 SC 630). In view of this analysis, submissions of the learned counsel for the respondents have no legal value.
11. For what has been discussed above, action by the Ministry of Communications, Government of Pakistan, reflected in the impugned letters, is absolutely illegal, unwarranted and without jurisdiction in result of which all the Constitutional petitions are allowed and striking down the action in dispute, writs as prayed are issued, with no order as to costs.