P L D 2002 Lahore 28 (PLP)

MIAN HAMID FAROOQ, J.

This appeal, filed under section 3 of the Law Reforms Ordinance, 1972, calls in question the order, dated 9-5-1993, passed by the learned Single Judge in Writ Petition No. 10856 of 1992, whereby the writ petition was dismissed.

2. Apparently, the appellant, being aggrieved by the actions of the respondent-authority of installation of electric towers and entry in his land, through the institution of the aforementioned writ petition, challenged the said actions of the respondent-authority on different grounds, which have ably been tabulated in the order under appeal, as such there is no need reiterate the same. The learned Judge in Chamber, after calling for the parawise comments from the respondent-authority and after hearing the parties dismissed the writ petition vide order, dated 9-5-1993, hence the present appeal.

3. Learned counsel fur the appellants, while reiterating the pleas raised in the writ petition, has, with reference to Articles 4 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973, urged that the actions of the respondent-authority of setting/installation of electricity towers for 220 K.V. are to be tested on the touchstone of the aforesaid Articles of the Constitution He has further contended that the actions of the respondent- authority of entering upon the land of the appellant without any permission, acquisition and in an unreasonable manner cannot be countenanced under any law, inasmuch as now show-cause notice was issued to the appellant before taking the said actions. Conversely, the learned counsel for the respondent -authority, while supporting the impugned actions of the respondents and the order passed by the learned Single Judge, referring to certain provisions of the Electricity Act, 1910, the WAPDA Act, 1958 and relying upon a few judgments has argued that the respondent-authority is empowered to enter upon the land of any person in order to carry out the works and the impugned actions are backed up by law.

5. Before dealing with the contentions raised by the learned counsel of the respective parties, it appears appropriate to recapitulate the relevant provisions of different statutes, which have got direct nexus with the case in hand. Section 3 of the Electricity Act, 1910, empowers Provincial Government to grant licence to supply energy in any specified area and also to lay down or place electric supply-lines for the conveyance and transmission of energy. Section 12 of the WAPDA Act, 1958, provides that the "Authority", which according to section 2(i) of the WAPDA Act, 1958, means Water and Power Development Authority established under section 3 of the Act, shall for the purposes of the Electricity Act be deemed to be a "licensee" and shall have all the powers and discharge all the obligations of licensee, as such under the said provision of law the status of a "licensee' has been conferred upon WAPDA. Under section 51 of the Electricity Act, the Provincial Government is competent to confer on licensee, by means of a notification, powers which could be conferred and possessed by Telegraphic Authority under the Telegraph Act, 1885. Pursuant to the said provision of law, Notification No. SO-11(E)2/5-60, dated 6-6-1961, was issued by the Governor of West Pakistan, whereby all the powers were conferred upon WAPDA, which the telegraph authority possesses under para. III of the Telegraph Act with respect to placing of telegraph lines and poles etc. Section 14 of the WAPDA Act, 1958,-read with section 12 of the Electricity Act, 1910, empowers WAPDA, being the "Authority", to enter upon land for erecting poles, lay wires to energize the power supply, as such WAPDA has the authority of putting the poles in different places. Section 14 of the WAPDA Act further envisages that the Deputy Commissioner of the concerned area will have the power to determine the sufficiency or otherwise of compensation to be awarded by the Authority to such affectees by its transmission of lines, as such the said provision of law specifically provides a forum, which will decide about the compensation and about its sufficiency.

6. Reverting, to the contention raised by the learned counsel regarding the alleged contraventior of Articles 4 and 24 of the Constitution, examination of the contents of the writ petition amply manifests that the appellants did not take this ground in this writ petition and such a plea has been taken by him, for the first time, before this Court, in appeal. It is settled law that when a person has not pleaded something and has not built p up his case on the specific assertion, he is precluded from taking such a plea before the appellate forum. In view of the established principle, the appellant is debarred from taking such a plea, for the first time in his appeal and the same cannot be entertained.

7. Even otherwise Article 24(3)(e)(ii) of the Constitution envisages that nothing in this Article shall affect the validity of any law provided for the acquisition of any class of property for the purposes of providing housing and public facilities and services such as road, water supply, sewerage, gas and electric power to all or any specified class of-citizens. In our view the said sub-Article provides a complete answer to the contention raised by the learned counsel.

8. Article 4(2)(a) of the Constitution provides that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 24(1) provides that no person shall be deprived of his property save in accordance with law. From the reading of Articles 4 and 24 of the Constitution the wordings "except in accordance with law" and "save in accordance with law" are of great significance. It means that if a person or authority is performing the functions and doing the work in accordance with law, then these Articles of C the Constitution will have no applicability in the set of circumstances. The necessary implication would be that when a person is deprived of his property under the authority of law and according to the provisions of law, he will have no grievance or ground to complaint about the said action under the provisions of the Constitution. Moreover, right to hold property is subject to reasonable conditions, which include the restriction of the same being acquired in accordance with law. It has been held in Sheikh Muhammad Anwar and another v. Pakistan through the Secretary, Ministry of Communication, Islamabad and 2 others (PLD 1989 Karachi 45) that if the object of acquisition is in the public interest and the same is not without payment of compensation, the said action will not be violative of the provisions of Articles 4, 23 and 24 of the Constitution and the provisions of the Constitution themselves provide the right to hold the property subject to reasonable restrictions, which include the restriction of the same being acquired in accordance with law. Needless to reiterate that section 14 of the WAPDA Act provides a forum for determination of compensation. Thus, we are not impressed by the argument of the learned counsel and his reliance on Articles 4 and 24 of the Constitution is misplaced as well as misconceived.

9. Resume of the different provisions of law, as given in para. No. 5, would amply manifest that the respondent-authority has the power and backing of law for installation of electric poles and also for that purpose have the authority to enter upon the land for erecting poles, lay wires to energize the powers for the supply of electricity and transmit the same. Moreover, the: learned Single Judge after relying upon Muhammad Aslam Khan v. West Pakistan Province (PLD 1962 Lahore 925), Kadir Bakhsh v. WAPDA (1989 D CLC 1615), Ghiasuddin v. Executive Engineer, WAPDA (1989 CLC 200) and Nazar Muhammad v. WAPDA (PLD 1991 SC 715) has rightly come to the conclusion that the entry as well as the installation of towers cannot be considered to be unauthorized, as the respondent-authority has the ample powers to undertake all the aforementioned actions, which are duly protected under the law and no exception can be taken by any person. As observed above, the respondent-authority has the right to enter upon the land for erecting pleas and lay wires to energize the power of supply of electricity.

10. For the aforesaid reasons, there appears to be no contravention of any provision of the law committed by the respondents-authority by laying wires and installation of electric towers, the judgment rendered by the learned Single Judge has been passed perfectly in accordance with law and E we are not inclined to interfere in the findings rendered by the learned Judge in Chamber. Thus, the appeal, which is devoid of merits, is dismissed with no order as to costs.

11. Before parting with the case, it appears necessary to import directions to the respondent-authority to initiate, if not already done, the proceedings for the award of compensation to the appellant as provided in law and also to expedite the matter in this respect. Q.M.H./M.A.K./H-56/L Appeal dismissed.