1989 PLP 200 (CLC)

Petitioner (absent). Azizullah A . Shaikh for Respondents. Date of hearing: 17th .October, 1988. TANZUL‑UR‑REHMAN, J. This is a Constitutional Petition under Article 199 of the Constitution of Islamic republic of Pakistan. It is, inter alia, averred in the petition that the petitioner owns land in Deh Kumbh Taluka Khanpur, district Shikarpur. It is further averred that respondent No.2 through his subordinates started digging ditches to .erect poles and put wires and to take forward supply lines over the petitioner s land, which the respondents have no authority under the Electricity Act, without consent of the petitioner and without adopting proceedings under Land Acquisition Act and paying compensation to him. The petitioner seeks the following reliefs: ‑ (a) That this Hobble Court will be pleased to declare that the action of the respondent No.l in entering upon petitioner s land and erecting poles, and doing other construction work is without lawful authority. (b) That the respondent No.l be restrained by permanent injunction from erecting poles and passing transmission line through his land without his consent or except as provided by law. (c) That the costs of this petition be granted. Mr. Azizullah A. Shaikh, learned counsel for the respondent, at the outset, submits that the prayer 6 as contained in para.7 of the petition has become infructuous as the work which was commenced on 7‑10‑1986 was completed on 4‑11‑1986, whereas the petition was presented in this Court on 30‑11‑1986. He invites our attention to the comments filed by the respondents and the affidavit filed alongwith it. There seems to be no counter‑affidavit filed by the petitioner to controvert this factual position. We, therefore, feel satisfied that the poles were erected and transmission line passed through the petitioner s land much before the filing of the petition. In view of this, prayer 8 cannot be granted and is rejected outright. As regards prayer A that the action of the respondent in entering upon the petitioner s land and erecting poles is without lawful authority, learned counsel for the respondents submits that the Water and Power Development Authority is a licensee and enjoys all the powers as provided under section 12 of the Water and Power Development Authority Act of 1958. He also refers to a Notification No.S.0‑II(E)2/5‑60, dated 6th of June, 1961 issued by the Governor of erstwhile West Pakistan, 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 Government of West Pakistan is pleased, for the place 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 possess under Part‑III of the Telegraph Act, 1885 with respect to the placing of telegraph lines and posts for the purpose of a telegraph established or maintained by the Government or to be so established or maintained. Counsel also referred to section 14 of the Water and Power Development Authority Act, which authorises the Chairman of the WAPDA or any person authorised by him to enter upon and survey any land, erect pillars for the determination of intended lines of works, make borings, excavations and do all other acts which may be necessary for the purpose. In this respect, he submits that a scheme was prepared by respondent No.l in respect of electrification of about 38 villages, which was duly approved by the Provincial Government. The submission is supported by Annexure B filed by the respondents alongwith comments supported by an affidavit. He further submits that the petitioner may, however, be entitled to claim compensation in respect of damage, if any, caused to his land as provided in section 19 of the Electricity Act, 1910 and section 16 of the Telegraph Act 1885. A bare reading of the provisions of law referred to above shows that the respondents had authority to enter upon the land of the petitioner for erecting poles, lay the wires and energize the power for supply of electricity to the villages and transmit the same to the said villages under scheme through the land of the petitioner. Reliance has also been placed on a Division Bench decision of erstwhile Lahore High Court by the counsel reported as Muhammad Aslam Khan and others v. West Pakistan Province and another PLD 1962 (W.P.) Lah. 925, which supported the contention of the counsel. The petitioner appears to also have taken a plea that the respondents without adopting proceedings under the Land Acquisition Act, could not perform acts on and over the land of the petitioner. D We feel that the question of taking proceedings in respect of his land under the Land Acquisition Act, 1894 did not arise as it is nobody s case that the respondents have acquired or purported to acquire land of the petitioner or any portion thereof. For the aforesaid reasons, there appears to be no contravention of the provisions of the law by passing electric wires over the land of the petitioner or erecting poles for that purpose on his land. The petition, is therefore, dismissed but in the circumstances there will be no order as to costs. Before parting with the case we would like to observe that the petitioner will be at liberty to institute proceedings for compensation against the respondents as provided in law. M . A . K . / G‑81 / K Petition dismissed.