2009 PLP 1038 (YLR)

The petitioner has invoked the constitutional jurisdiction seeking following prayer against the respondents; "(i) To restrain the respondents, their staff, workers, labourers, representatives, subordinate, attorneys, men or persons on their behalf from sending/issuing of any notice as well as excess electricity bill in respect of Account No. SCH No.2750167553849 Consumer old Account No.AP088157/57553847 installed at Petitioner's factory A-One Textile & Towel Industries situated at Plot No.1159, Bismillah Colony, Street No.10, Orangi Town, Karachi. (ii) To direct the respondents to adjust the excess electricity bill in respect of Account No. SCH No.2750167553849 Consumer old Account No.AP088157/57553847 installed at Petitioner's factory A-One Textile & Towel Industries situated at Plot No.1159, Bismillah Colony, Street No. 10, Orangi Town, Karachi, in future electricity bill. (iii) To direct the respondents to remove the CT Operated Meter installed as Account No. SCH No.2750167553849 Consumer old Account No.AP088157/57553847 installed at Petitioner's factory A-One Textile & Towel Industries situated at Plot No.1159, Bismillah Colony, Street No.10, .Orangi Town, Karachi as the same is for heavy industry, but the petitioner industry is only consumption power of 27KV. (iv) Any other relief or reliefs as this Honourable Court may deem/think fit and proper in view of the circumstances of the case to secure the ends of justice." Much of the emphasis has been laid by the learned counsel for the petitioner that the petition as framed and filed is maintainable in law in view of the dictum laid down in the case of Muhammad Dawood and others v. Federation of Pakistan and others (2007 PLC (C.S) 1046) and Som Prakash Relehi v. Union of India and another (AIR 1981 SC 212). It has been held that if a statutory corporation, body or other authority is an instrumentality or agency of the Government, it would be an "authority" and therefore, "State" within the meaning of that expression in Article 12 and is subject to the same constitutional limitations as Government. The preponderant consideration for pronouncing any entity as State Agency or instrumentality are: (i) Financial resources of the State being the chief funding source. (ii) Functional character being Governmental in essence. (iii) Plenary control residing in Government. (iv) Prior history of the same activity having been carried on by Government and made over to the new body and (v) Some element of authority or command. Learned counsel for the respondents has relied upon the cases reported as Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others (PLD 1975 SC. 244) and Maqsood Ahmed Toor v. Federation of Pakistan 2000 SCMR 928 and an unreported judgment of the Honourable Supreme Court of Pakistan in Civil Petition No.106-K of 2007 whereby it was held that the petition against the Karachi Electric Supply Corporation (K.E.S.C.) is not maintainable in view of the Article 199(1) (A) and (B) of the Constitution of Islamic Republic of Pakistan, 1973. We have considered the arguments advanced at bar. On account of the fact that Karachi Electric Supply Corporation (K.E.S.C.) commands majority of the share holding to the extent of 73% and are not performing any function in the affairs of the Federation or Provincial Government as a legal entity, we are of the view that the petition as framed and filed is not maintainable in law. However, the petitioner may resort to the forum available under the law for seeking redress. In view of the above, the petition, being not maintainable in law, hereby stands dismissed in limine along with listed applications. H.B.T./M-49/K Petition dismissed.