' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- By this order we intend to finally dispose of Constitutional Petitions Nos.D-390 and 541 of 2005. In both the petitions, the grievance of the petitioners is that the Executive Committee of Pakistan Defence Officers Housing Society, the respondent, in its Meeting No,1 of 2005 held on 1st and 2nd of March, 2005, has prescribed criteria and qualification for Real Estate Agents working within the territorial jurisdiction of the respondent and dealing with the properties governed by the respondent. The contention of the petitioners is that the respondent has no such authority in law and the criteria/qualification prescribed for registration of Real Estate Agents, is violative of Article 18 of the Constitution of Islamic Republic of Pakistan and is also violative of Article 4 of the Constitution.
2. We have heard Messrs Mushtaq A. Memon, Faisal Kamal and Hasan Akbar, Advocates for the petitioners and Mr. Muhammad Jamil, Advocate, assisted by Shahid Jamil, Advocate for the respondents.
3. Since the contention of the learned counsel for the petitioners is that the respondent has been established under Pakistan Defence Officers' Housing Authority Order, 1980, and is merely empowered to act in accordance with the provisions contained therein and the said order does not empower the respondent to prescribe any qualification for the registration of Real Estate Agents or to place restriction on their business, therefore, we asked Mr. Muhammad Jamil, Advocate to show us the provision under which the respondent is empowered to prescribe qualifications/criteria and pass the regulation regulating the business of the Real Estate Agents.
4. Mr. Muhammad Jamil, learned counsel referred to Articles 23 and 9 of the President's Order No,7 of 1980 (hereinafter referred to as the "President's Order").
5. Before considering the legality and vires of the impugned regulation, it would be appropriate to reproduce the item No,(q) of the Minutes of Executive Board Meeting No,1 of 2005, which reads as follows:--
(q) Regulate Property/Real Estate Agents in order to guide them to work within parameters laid down by D.H.A.
(1) The registration parameters have been finalized and will be discussed for obtaining necessary approval. The suggested criteria/qualification for registration of Real Estate Agencies is as under:-
(a) Should have a National Tax Number.
(b) Should possess good character and should have clean record/reputation; no involvement in any criminal activity duly certified by concerned police authorities.
(c) Should have minimum one year experience in property dealing from an established office premises.
(d) Should agree to abide/follow all rules/regulations laid down by D.H.A. For registration of Estate Agencies including registration fee:-- ' Temporary registration for three years Rs,50,000 ' Temporary registration renewal for next two years Rs,25,000 ' Permanent Registration Rs,1,00,000
(e) Should agree to accept all decisions of D.H.A. On property sale purchase disputes.
(2) The registration of Real Estate Agencies are proposed to be governed under following rules and regulations:--
(a) Only registered Real Estate Agencies will be permitted to operate in D.H.A. Karachi.
(b) in case of property deal between two private parties; the parties will have to engage a D.H.A.
Registered Real Estate Dealer at the cost of Rs,5,000 (to be shared by both parties). The agency will prepare All relevant transfer documents and will hold complete responsibility to settle disputes, if any, (In this case no commission will be paid to agent).
(c) The Real Estate Agency will not be permitted to change the buyer other than mentioned in the Agreement.
(d) Subsequent sale on advance money will not be permitted. Agencies found involved in such practices will be liable for cancellation of their registration.
(e) D.H.A. Sales agreement form will be introduced and all agreements will be made on these forms and copy of it will be submitted at Transfer and Record Reception Counter.
(f) Blackmailing tactics of issuing legal notices will be discouraged. Disciplinary action will be taken against such agencies who are found involved in mala tide practices.
(g) In case of default by the buyer, the seller will report the matter at Transfer and Record Directorate D.H.A. On the final date of payment. The presence will be recorded under the camera.
(h) All property transfer deals will be made within 15 clear days, starting from the date of agreement. The advance payment should be made through pay-order/demand draft into the seller's account.
(i) The registered Real Estate Agencies will be held responsible for completion of their deals. In case of default by buyer or seller, D.H.A. Concerned staff will be immediately informed in writing.
(k) D.H.A. Reserves the rights to make changes to the governing/ registrations rules of Real Estate Agencies and delete or add to these.
(1) In case of any violation to above Rules and Regulations, the registration of the said Real Estate Agency will be suspended/ cancelled.
Decision:
(1) The Executive Board gave formal approval for carrying out Registration of Real Estate Agencies.
However, President, Executive Board directed Administrator D.H.A. To carry out said process with due diligence after advertising in Daily 0 Newspapers. It should, also be ensured that the criteria is displayed on Notice Board on permanent basis for information of members coming for Transfer of Plots.
(2) President, Executive Board intimated that he has received numerous complaints of delay in Transfer process and asked Administrator D.H.A. To study that present duration of 15 days may be reduced without affecting the transparency of the process. Member P.A.F. Was of the opinion that while considering reduction in time taken for verification, security of property must not be compromised.
(3) The Board was informed that the physical transfer is being carried out within 2 days but formal transfer letter has to pass through Town Planning and Building Control Directorate, Transfer and Record Directorate and Law Branch for verification purposes hence certain specified duration is essential. President, Executive Board directed that the whole process should be transparent and expeditious. The culture in D.H.A. Public Dealing Departments should be user friendly and time be reduced to a maximum and delays be avoided. As regards Real Estate Agents, President, Executive Board desired that scrutiny be carried out professionally while registering them and no preference be exercised. Administrator D.H.A. Intimated the Board that the working of the Real Estate Agents will be studied for a certain time duration and if problems are encountered then the status quo will be maintained."
6. A perusal of the above suggestions and the decision taken thereon shows that it emerges to prescribe criteria/qualification for the purpose of registration of Real Estate Agencies and further to prescribe the parameters within which they shall work and that violation of the conditions prescribed, shall result in cancellation of the registration. Thereafter they will not be allowed to conduct their business as Real Estate Agencies within the premises of respondent and in respect of the properties situated therein.
7. We have asked Mr. Muhammad Jamil to show us the provisions under which the respondent is empowered to prescribe the conditions for doing the real estate business, and the provisions in the President's Order empowering to prescribe fee for registration. We have further asked Mr. Muhammad Jamil to show us the provisions contained in the President's Order, under which the two parties engaged in a transaction and dealing with a property shall have to engage the D.H.A.
Registered real estate dealer at the cost of Rs,5,000. The effect of this condition would be that nobody else shall be permitted to conduct real estate business in the area under the control of D.H.A. It clearly militates against the provisions contained in Article 18 of the Constitution of Islamic Republic of Pakistan, which reads as under:-- "18. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: ' Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or. Industry in the interest of free competition therein; or
(c) the carrying on, by the Federal. Government or a Provincial Government, or by a Corporation controlled, by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.
8. Mr. Muhammad Jamil contended that under Article 18 of the Constitution of Islamic Republic of Pakistan, the business can, be done subject to such qualifications as may be prescribed by law, It was pointed by Mr. Muhammad Jamil that the qualifications/regulations can be prescribed under the law and for that purpose there should be some law Federal or Provincial passed by the Legislature or any subordinate legislation under the authority delegated by the Legislature. No doubt the President's Order is a law, as the President is empowered to promulgate the Order but for that purpose there should be specific provision within the realm of delegated legislation and in exercise` of that delegated authority only, the respondent can make law in the nature of subordinate legislation.
9. For this purpose, we would like to reproduce the provisions contained in Articles 9 and 23 of the Presidents Order.
"9. Powers, duties and functions of Executive Board.--- (1) Subject to other provisions of this Order, the Executive Board may take such measures and exercise such powers. As may be necessary for carrying out the purposes of this Order.
(2) Without prejudice to the generality of the foregoing powers, the Executive Board may--
(i) acquire any land in accordance with the law for the time being in force in the Province of Sindh.
(ii) undertake any works in pursuance of any scheme or project;
(iii) incur any expenditure;
(iv) procure plant, machinery, instruments and materials;
(v) impose and recover, alter, vary or enhance development charges, instalments, cost of apartments, housing units of schemes and projects and transfer fees and other charges;
(vi) enter into and perform all such contracts on behalf of the Authority as it may consider necessary;
(vii) retain, lease, sell, exchange, rent or otherwise dispose of any land vested in the Authority; (viiii) cancel any housing unit in a planned housing project or scheme, either in default of payment of instalments called for or on violation of any terms and conditions for such project or scheme by allottees, transferees or lessees; and
(ix) do all such acts, deeds and things which may be necessary of expedient for the proper planning and development of the specified area.
(3) No master plan, planning or development scheme shall be prepared by any local body or agency for the specified area without prior consultation with, and approval of, the Executive Board."
"23. Power to make regulations.--- The Executive Board may make such regulations not inconsistent with the provisions of this Order and the rules as it may consider necessary or expedient for the administration and management of the affairs of the Authority. "
10. A perusal of Article 23 above shows that the Executive Board is empowered to make such regulations not inconsistent with the provisions of this Order and the rules as it may consider necessary or expedient for the administration and management of the affairs of the Authority.
11. Mr. Muhammad Jamil, initially attempted to argue that the qualifications/conditions prescribed through the purported regulation are for the purpose of administration and management of the affairs of authority, but when confronted with the specific provisions prescribing the qualifications for the registration of Real Estate Agents and several other provisions, including the charging of fee for the purpose of registration. Mr. Muhammad Jamil, has very frankly stated that there appears to be some overstepping on the part of respondent and he stated that within three days they will modify, amend or withdraw and pass fresh regulation in order to bring the same within the parameters of the authority vested under the President's Order. Since we are of the opinion that the respondent has no jurisdiction to prescribe any conditions or authority to regulate the working of the Real Estate Agents, therefore, instead of granting time, thought it appropriate to decide both the petitions. At, this stage, we would like to observe that there is substance in the contention of Mr. Muhammad Jamil that the business of Real Estate Agency is being conducted on very large scale and there are complaints as well. This business, therefore, requires regulation through appropriate legislation. However, mere necessity of legislation on any point shall not empower, any authority, agency or body to resort to subordinate legislation. It is entirely within toe, competence of the appropriate Legislature to take stock of the situation and to legislate. For this purpose, the respondent may' approach the Ministry of Law requesting for appropriate legislation governing and regulating, the real estate business in the entire country including D.H.A.
12. We have further gone through the provisions contained in Article 9 of the President's Order, and have found that it empowers the Executive Board of respondent to take such measures and exercise such powers as may be necessary for carrying out the purposes of this Order. Again the respondent is confronted with same 'difficulty as, with reference to Article 23, because until and unless there is a' provision empowering the Executive Board of the respondent, they cannot resort to any subordinate legislation.
13. However, we would like to observe that the Governing Body of respondent is empowered to make the rules under Article 22, for carrying out the purposes of this order, subject to Notification in the official Gazette. It requires no emphasis that the things should be done as they are required to be done or not at all. We would further observe that these rules shall be restricted and confined to carry out the purposes of the President's Order but shall not extend to regulate the business of affairs of any other person/persons or agencies which are not part and parcel of the respondent, Defence Officers Housing Authority.
14. For the foregoing reasons and the observations made above, we are of the opinion that the impugned purported regulation passed in Meeting No,1 of 2005 of the respondent reproduced in the earlier part of this order is without jurisdiction and consequently void ab initio. The impugned purported regulation, criteria/qualification and every decision thereunder is hereby quashed being ultra vires and violative of the provisions contained in Articles 4 and 18 of the Constitution of Islamic Republic of Pakistan.
15. Both the petitions stand disposed of accordingly along with listed applications: