P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑By this petition, Hafiz Muhammad Aslam Khan Sadozai of Multan and his mother seek a writ which result in preventing the West Pakistan Water and Power Develop ment Authority to pass electric wires over the land of the petitioners. The respondents in the petition are the West Pakistan Province through the Collector, Multan District and the West Pakistan Water and Power Development Authority (to be referred hereinafter as WAPDA) both of whom resisted the petition.

2. There is no dispute between the parties about certain facts. These facts are as under (i) That the eland over which WAPDA, respondent No. 2, want to pass electric wires, belongs to the petitioners. (ii) That WAPDA has not so far acquired the property of the petitioners which would be affected by the poles and wires to be set up. (iii) That a suit instituted by the two petitioners against the West Pakistan Government to prevent it from passing electric wires over the land of the petitioners was decreed by ‑ Sh. Muhammad Shafi, then a Civil Judge 2nd Class, on the 28th of September, 1960.

3. Learned counsel for the petitioners urged that the act of WAPDA, respondent No. 2, in setting up poles and passing electric wires over the land of the petitioners, was not allowed by any provision of law and made a reference to the judgment of Sh. Muhammad Shafi, Civil Judge 2nd Class, Multan, dated the 28th of September, 1960, which has been mentioned in the last para graph. It appears to me that the judgment above‑mentioned can be of no avail to the petitioners in this case, because it was given against only one of the two respondents of this petition and dealt with entirely different facts.

4. I will now take up the question whether the WAPDA is allowed by law to fix poles in and pass wires over the land of the petitioners. Now, on the 6th of June, 1961, the Governor of West Pakistan, issued Notification No. S. O. II (E) 2/5‑60, which reads as under: "In exercise of the powers conferred on him by section 51 of the Electricity Act, 1910, read with section 12 of the West Pakistan Water and Power Development Authority Act, 1958, the Governor of West Pakistan is pleased, for the placing of appliances and apparatus for the transmission of energy, to confer on the West Pakistan Water and Power Development Authority (hereinafter referred to as the Authority) all the powers which the Telegraph Authority possesses under Part III of the Telegraph Act, 1885, with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained." It is on the basis of this notification that' WAPDA is doing the acts with regard to which the present writ petition has been presented and one of the main questions to consider is whether this notification has conferred necessary powers on WAPDA.

5. Learned counsel for the petitioners urged that the notifi cation was defective. The reason he advanced for this contention was that as the notification conferred upon WAPDA the powers which a Telegraph Authority under the Telegraph Act of 1885 could exercise under that Act, conferment of powers by the Governor of West Pakistan was ineffective, because it was only the Central Government that could confer powers on a Telegraph Authority. In order to fully understand this contention of the learned counsel for the petitioners, it is necessary to have before one the provisions contained in section 51 of the Electricity Act, as well as those in section l2 of the West Pakistan Water and Power Development Authority Act, 1958, in exercise of the powers conferred on him under which two sections the Governor of West Pakistan had issued the notification dated the 6th of June, 1961, which has been reproduced in Paragraph No. 4 above. This is how the two sections read "

51. Notwithstanding anything in sections 12 to 16 (both inclusive) and sections 18 and 19, the Provincial Government may, by order in writing, for the placing of appliances and apparatus for the transmission of energy, confer upon any public officer or licensee, subject to such conditions and restric tions (if any) as the Provincial Government may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act, with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or main tained by the Government or to be so established or maintained.

12. Authority to have powers and obligations of licensee under Act IX of 1910.‑The Authority shall, for the purposes of the Electricity Act, 1910, be deemed to be a licensee and shall have all the powers and discharge all the obligations of a licensee under the said Act: Provided that nothing in sections 3 to 11, subsections (2) and (3) of section 21 and sections 22, 23 and 27 or in Clauses I to X11 of the Schedule to the said Act relating to the duties and obligations of a licensee shall apply to the Authority." ,

6. Learned counsel for the petitioners contended that before a person could be considered a licensee for the purpose of section 51 of the Electricity Act, 1910, he had to be granted a licence, under the provisions of the Electricity Act, 1910, and as admittedly this was not done in the case of WAPDA, section 51 of the Electricity Act, 1910 could not have been invoked to confer powers on that body. This argument of learned counsel for the petitioners cannot be accepted, because it overlooks the provisions of section 12 of West Pakistan Water and Power Development .Authority Act, 1958, which became law in April, 1958, and was m force at the time that the notification above‑mentioned was issued. It is true that section 51 of the Electricity Act, contemplates a licensee under the Act, but I am clear in my mind that the fact that no license was granted to WAPDA under the Electricity Act, does not adversely affect the position of that body for the purposes‑ of the application of section 51 of the Electricity Act, 1910, to it, because section 12 of the West Pakistan Water and' Power Development Authority Act, 1958, confers upon the Authority the status of a licensee under the Electricity Act, 1910. The objection of the learned counsel for the petitioners was that as the Electricity Act of 1910, which was passed by the Governor- General‑in‑Council, mentioned the conditions on satisfaction of which a person could become a licensee for the purposes of this Act, these conditions had to be satisfied by WAPDA before becoming a licensee and if the provisions of section 12 of the West Pakistan Water and Power Development Authority Act, 1958, were to be sufficient for conferring the status of a licensee on that body, it would amount to countenancing the amendment of a Central Act by means of a Provincial Act. There is no force in this argument of the learned counsel for the petitioners. The Water and Power Development Authority, Act, 1958, was passed at a time when the Constitution of Islamic Republic of Pakistan, which was enforced on the 23rd of March, 1956 and abrogated on the night of the 7th of October, 1958, was in force. The pro visions of that Constitution, which are relevant for the present purpose, were contained in Article 106, which was in the following terms: "106. (1) Notwithstanding anything in the two next succeed ing clauses, Parliament shall have exclusive power to make laws with respect to any of the matters enumerated in the Federal List. (2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1) a Provincial Legislature also, shall have power to make laws with respect to any of the matters enumera ted in the Concurrent List. (3) Subject to clauses (1) and (2), a Provincial Legislature shall have exclusive power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial List. (4) Parliament shall have power to make laws with respect to matters enumerated in the Provincial List, except for a Province or any part thereof." Turning to the Provincial List given in the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan, 1956, one finds that water, including water supply, irrigation and canals drainage and embankments, water storage and water power were mentioned in entry No. 19 while electricity was mentioned in entry No. 56 of the list. It follows, therefore, that with regard to electricity and water power, Provincial Legislature was competent to make laws and any law made by that Legislature would be valid even if it came in conflict with an earlier law made by the Central Legis lature. Article 110 of the Constitution of the Islamic Republic of Pakistan will not hit such laws of the Provincial Legislature because this Article declares invalid only those laws made by the Provincial Legislature which were with regard to the subjects mentioned in the Concurrent Legislative List of the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan. Consequently, when the Provincial Legislature by means of a legislative measure made WAPDA a licensee for the purposes of Electricity Act, 1910, that body validly became a licensee for the purposes of the Electricity Act, 1910.

7. The next contention of learned counsel for the petitioners in this regard was that the notification issued by the Provincial Governor on the 6th of June, 1960, was invalid, because it conferred powers on WAPDA which could be conferred on a Telegraph Authority by the Central Government. This argument is without force. It will be noticed that section 51 gave the Provincial Government Authority to confer by means of notifi cation under the Electricity Act, 1910, powers which could be conferred on a Telegraph Authority by the Central Government under Part III of the Telegraph Act, 1885. Learned counsel for the petitioners contended that unless the Central Government issued a notification authorising WAPDA to exercise powers which a Telegraph Authority could exercise under Part III of the Tele graph Act of 1885, the position will be anamolous, because powers which only the Central Government could confer would have been conferred by Provincial Government. This argument needs no serious consideration, because it does not take into account the clear provisions of section 51 of the Electricity Act, 1910, which authorise the Provincial Government to confer on a licencee under the Electricity Act the powers which have been conferred on a Telegraph Authority by means of the Telegraph Act. In the face of the provisions of section 51 of the Electricity Act, 1910, the contention of the learned counsel for the petitioners that powers which Telegraph Authority could exercise under the provisions of Telegraph Act, 1885 could be exercised by any other authority only if the Central Government issued a notification to that effect, is clearly untenable.

8. In view of what I have said above, it will have become clear that WAPDA, respondent No. 2, is not contravening the provisions of any law by passing wires over the land of the petitioners or setting up poles for that purpose in that land. That the petitioners will get compensation for the land that they are deprived of need hardly be mentioned and indeed, the learned Advocate‑General of West Pakistan, who appeared for both the respondents made a statement that proceedings for acquisition of the land required by WAPDA would start in the near future. For the above reasons, I dismiss the petition, but in view of the circumstances of the case leave the parties to bear their own costs. A. R. KHAN, J.‑I agree. K. B. A. Petition dismissed.