1. ' NASIM HASAN SHAH, J---These three appeals, by leave of this Court, are directed against the judgment of a Division Bench of the Sindh High Court, dated 10th August, 1989, by which the Constitution petitions instituted by the respondents in the three appeals were accepted and Bye- Law No,3 of Bye-Laws called the "Construction and Operation of Engineering Works Bye-Laws, 1979," framed under section 25 of the Pakistan Engineering Councils Act, 1976, was struck down as ultra vires.
2. ' Pakistan Engineering Council, the appellant in all these appeals, is a statutory body constituted under section 3 of the Pakistan Engineering Councils Act, 1976 (hereinafter referred to as the Act). In exercise of power under section 25 of the Act, the appellant vide its notification, dated 8th July, 1987, published the Construction and Operation of Engineering Works Bye-Laws, 1987 (hereinafter referred to as the Bye-Laws) No,3 of these Bye-Laws provided that no Engineering Works shall be constructed except by a constructor or by an operator licensed as such by the Council. Under the next Bye-Law all the constructors and operators were required to obtain licences for that purpose.
3. The respondents in these appeals are approved constructors registered with the Public Works Department and other statutory Corporations, engaged in the construction works through contracts. Feeling aggrieved by these Bye-Laws, they challenged the vires of Bye-Law No,3 in separate Constitution petitions.
4. ' The learned Judges of the Division Bench of the Sindh High Court, who decided. The Constitution petitions, held that the impugned Bye-Law before them was beyond the scope of authority vesting in the appellant Engineering Council as they did not fall under section 8 of the Act, relating to functions specified therein. It was observed that the Act is essentially intended to regulate or organize the Professional Engineers and not in respect of the contractors. Consequently, the impugned Bye-Law was declared contrary to the provisions of the Parent Act which is confined to engineering profession and not to engineering works or contractor.
5. ' In support of these appeals, Mr. Abid Hassan Minto, learned counsel for the appellants, contended that the learned Judges of the Division Bench had erred in interpreting the scope of the functions and powers of the Engineering Council under the Act and confined their attention simply on the provisions of section 8. According to him, if the other provisions of the Act had also been kept in view, it would have become manifest that the Bye-Law was within the scope of the functions of the Engineering Council and was validly made under the provisions of the Act. He defended the vires of the Bye-Law in question by reference to section 2(k) of the Act, which defines "Professional Engineering Works" read with section 27 which provides penalty for those who employ persons whose names are not borne on the register of Professional Engineers maintained by the Council. He also referred to section 8(c) and (f). According to the arguments of the learned counsel, the learned Judge of the High Court had ignored these provisions of law in coming to the conclusion that the appellant had exceeded the scope of its authority in framing the Bye-Laws in question.
6. ' After having heard the learned counsel for both the parties we are of the opinion that the High Court has indeed not kept in view all the provisions of Act 1977, their purposes and amplitude.
7. Section 2-K of the Act which defines the terms "Professional Engineering Works" lays down as follows: --
(k) "professional engineering work" means the giving of professional advice and opinions, the making of measurements and layouts, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works, in respect of--
(i) railways, aerodromes, bridges, tunnels and metalled roads;
(ii) dams, canals, harbours, light houses;
(iii) works of an electrical, mechanical, hydraulic, communication, aeronautical power engineering geological or mining character;
(iv) waterworks, sewers, filtration, purification and incinerator works;
(v) residential and non-residential buildings, including foundations, framework and electrical and mechanical systems thereof;
(vi) structures accessory to engineering works and intended to house them; and
(vii) any other work which the Council may by notification in the official Gazettee, declare to be an engineering work for the purposes of this clause."
8. ' Section 8 of the Act which has been relied upon by the High Court and sets out "Functions of the council" indeed deals with the matter of qualification of professional engineers and consulting engineers who practise as such; the recognition of their engineering qualifications for the purposes of registration, standards of conduct for the members, removal of their names from the Register etc. And does not contemplate the regulation or organising the contractors as held by the High Court. However, there were other provisions of the Act which required to be taken into account but apparently have not been given adequate consideration. For instance, section 12 of the Act dealt with the matter of "Grant of temporary licences" and subsection (3) thereof provided as follows:-
(3) The Executive Committee may, for works to be carried out at the discretion of an engineering public organisation, grant a temporary licence to any person on the recommendation of such organisation."
9. ' Again section 25 of the Act, which empowers the Executive Committee, with the previous sanction of the Federal Government, to make 'Bye-Laws confers this power "for carrying out the purposes of this Act" and section 27 of the Act lays down that whoever undertakes any professional engineering work shall. If his name is not for the time being borne on the Register, after the date specified by the Federal Government in this behalf, shall be punishable with imprisonment for a term which may extend to six months. Thus, according to this section undertaking any professional engineering work by a person not registered as Professional Engineer is not only prohibited and any such persons undertaking these works punishable but also disables such a person from recovering any amount for such service, through any Court.
10. ' Now major constructions and other engineering work is undertaken in our country by companies, partnerships and individuals, whether based in Pakistan or outside, who are not professional Engineers within the meaning of Act V of 1976 and may be ordinary investors and entrepreneur. It is up to them to employ or not to employ qualified engineers for undertaking extensive works entrusted to them. According to the learned counsel for the appellants, several incidents occurred in which buildings collapsed and other accidents took place resulting in extensive damage to human life and to public property. These incidents were responsible for making provision for some kind of control to be exercised over such agencies carrying out professional engineering work but who were doing so without employing any or employing insufficient number of professional engineers to look after the project entrusted to them. This is the raison d'etre for the framing of Bye- Law No,3. This Bye-Law provides that:--
(1) no engineering work shall be constructed except by a constructor or by an operator licensed as such by the Council; and
(2) every person already constructing or operating an engineering work immediately before the commencement of these bye-laws shall within a period of six months apply for a licence to the Council to fulfil the requirements of these bye-laws.
11. "Constructor" is defined in clause (f) of Bye-Law No, 2 to mean any person, partnership, corporate body or other legal entity registered or licensed as such by the Council; while the "Operator" is defined to mean any person, partnership, corporate body or other legal entity registered or licensed as such by the Council. The impact of Bye-Law No,3 is that now professional engineering work may be undertaken only by those constructors who have obtained a licence from the Council.
12. While Bye-Law No,5 lays down qualifications for obtaining the licence and provides that for carrying out professional engineering work of the prescribed nature, certain number of registered professional engineers of prescribed experience must be employed. The combined operation of Bye-Law No,3 and Bye-Law No,5 is to ensure proper and satisfactory undertaking of "professional engineering works". And, in fact, approximately 4700 constructors and operators of different categories have, by now, been registered by the Council including all the top construction firms of the country.
13. 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 to 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 case, the High Court had taken into consideration all relevant provisions of the Act to determine the ambit of the Act, it would have become apparent that section 8 was not the only provision in the Act which spelled out the scope and purpose of the Act but there were other provisions too which had to be taken into account for determining its scope and purpose such as section 27 and section 2(k). The failure to give adequate attention thereto has led the High Court to an erroneous conclusion.
14. ' The upshot is that the judgment of the High Court in the above-noted appeals must be set aside.
15. Accordingly, its declaration that Bye-Law No,3 is without lawful authority and of no legal effect being unsustainable is hereby set aside and these appeals are allowed. Since an intricate question of law arose in this case there shall be no order as to costs.