1996SCMR1516 (PLP)

Date of hearing: 7th June, 1995. ZIA MAHMOOD MIRZA, J.--This is a petition for leave to appeal from the judgment/decree of Lahore High Court, Multan Bench dated 29-11-1993 dismissing the petitioner's revision petition filed against the judgments and decrees of the Courts below decreeing the respondents' suit.

2. Petitioner/WAPDA installed Electricity Poles in and passed electric wires over the land of the respondent which led the latter to file a civil suit for mandatory injunction against WAPDA and its functionaries. The suit has been decreed by the trial Court and the petitioner's appeal against the judgment and decree of the trial Court has been dismissed by Additional District Judge. Revision petition filed by the petitioner in the High Court has also met no better fate as the learned Judge in the High Court has dismissed it holding that under section 12 of the Electricity Act, 1910, if an owner or occupier of any building or land raised objection to the fixing of any aerial line over that building or land, the Authority i.e. WAPDA could proceed further in the matter only after obtaining order in writing from the District Magistrate but in the instant case, before installing transformer over the property of the respondent; "prior permission as visualized by section 12 was not obtained from the District Magistrate.".

3. Learned counsel appearing for the petitioner has contended that in taking the aforesaid view, the learned Judge of the High Court has overlooked the provisions of section 51 of the Electricity Act and the' Notification issued thereunder. Section 51 reads as under:-- "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 licencsee, subject to such conditions and restrictions (if any) as the Provincial Government may think fit to impose, and to the provisions of the Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act, with respect to 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."

4. The notification issued under the aforementioned provision on the 6th of June, 1961 is as follows: "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 telegraph established or maintained by the Government or to be so established or maintained."

5. Learned counsel has submitted that by the notification aforementioned, all the powers which the Telegraph Authority possesses under Part III of Telegraph Act with respect to the placing of telegraph lines and posts were conferred on WAPDA for the purpose of placing of appliances and apparatus for the transmission of energy. It is argued that by virtue of the powers conferred on WAPDA by the Notification above-referred, it could lawfully erect the poles and lay the wires without the consent of the respondent and without obtaining prior permission of the District Magistrate which according to the learned counsel was not necessary to obtain. In support of his submission, learned counsel has relied upon: (1) Muhammad Aslam Khan and others v. West Pakistan Province and another (PLD 1962 (W.P.) Lahore, 925), (2) Malik Haji Nazar Muhammad and another d. WAPDA and another (PLD 1991 SC 715), (3) Pakistan Water and Power Development Authority through its Project Director v. Pakistan Atomic Energy Commission Employees' Cooperative Housing Society Ltd., Islamabad (PLD 1993 Lahore 237).

6. The point raised by the learned counsel, in our view, needs examination. Leave to appeal, is, therefore, granted to the petitioner. Operation of the impugned judgment shall remain suspended till the final disposal of the appeal. A.A./W-148/S Leave granted.