2011 SCMR 226

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Mian Saqib Nisar, JJ

NISAR AHMAD---Appellant

Versus

MASOOD AKHTAR and others---Respondents

Civil Appeal No. 1110 of 2009, decided on 26th October, 2010.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi,
dated 24-6-2009 passed in C.R. No. 638 of 2004).

(a) Electricity Act (IX of 1910)---

----S. 12---Civil Procedure Code (V of 1908), S. 115---Constitution of Pakistan, Art. 185(3)-

--Leave to appeal was granted by Supreme Court to consider; whether High Court should
have exercised revisional jurisdiction in setting aside well-reasoned judgment of Lower
Appellate Court; whether installation of electric poles in the property of someone could be
objected to under S.12 of Electricity Act, 1910, and could compensation in money be not
considered lawful remedy; whether genuineness or validity of requirement for installation of
electricity connection was, at all relevant; whether owner of land could challenge the
installation, without challenging compensation order passed by District Coordination Officer;
whether litigation initiated by owner of land was based on mala fide and personal vendetta;
whether Water and Power Development Authority was not bound to supply electricity
connection to consumer; and whether to remove any such hindrance was not the sole
responsibility of Water and Power Development Authority.

(b) Electricity Act (IX of 1910)---

----S. 12---Specific Relief Act (I of 1877), Ss. 42 & 54---Supply of electricity---Installations

on private land---Principle---Licensee (Water and Power Development Authority), in order to
supply electricity to defendant, installed poles and electric wires over the land owned by
plaintiff---Trial Court decreed the suit in favour of plaintiff and directed the licensee to
remove installations but Lower Appellate Court directed the Authority to pay him
compensation---High Court in exercise of revisional jurisdiction set aside the judgment and
decree passed by Lower Appellate Court and restored that of Trial Court--Validity---Licensee
was barred under S. 12 of Electricity Act, 1910, to lay down any electricity supply line or
other work on or over any land without consent of its owner or occupier---In case of
objection by the owner or occupier of the land, licensee was obliged to obtain written
permission from District Magistrate, before erecting any electric pole or laying aerial line ---
Where District Magistrate had granted such permission, he was obligated to fix amount of
compensation or rent to be paid by licensee to owner or occupier of the land---Such process
was to be undertaken before installation, as the Magistrate was required to inquire into merits
of objection raised by the owner and permission could be refused in appropriate cases---
Fixation of compensation by District Magistrate upon direction of Lower Appellate Court
was not in terms of S. 12 of Electricity Act, 1910-Such direction appeared to have been
influenced by equitable consideration that removal of poles and power supply to defendant
would be unfair and unjust---Without consent of plaintiff and written permission of District
Magistrate, Water and Power Development Authority had violated the provision of S. 12 of
Electricity Act, 1910---As the findings of Lower Appellate Court were not in accord with
statutory provisions, High Court was justified in setting aside the same in its revisional
jurisdiction---Supreme Court declined to interfere with judgment and decree passed by High
Court---Appeal was dismissed.

National Cement Industries Ltd. v. Karachi Electric Supply Corporation Ltd. 1986 CLC 150;
WAPDA v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society
Limited PLD 1993 Lah. 237; Hakim Ali v. Member Power WAPDA PLD 2002 Lah. 28;
WAPDA v. Ch. Bashir Ahmed 1996 SCMR 1516; Jit Singh v. Gujranwala Electric Company
AIR 1929 Lah. 226; S.M.E.S. Corporation Limited v. T.L. Jagannatha Aiyar and others AIR
1960 Madras 374 and Sh. Surat Singh v. Delhi Municipal Corporation AIR 1989 Delhi 51
ref.
Abdul Karim Khan Kundi, Senior Advocate Supreme Court and Ifnan Karim Khan Kundi,
Advocate Supreme Court for Appellant.

Gulzarin Kiyani, Senior Advocate Supreme Court and Abdul Rashid Awan, Advocate
Supreme Court for Respondent No. 1.

Mehmood A. Sheikh, Advocate Supreme Court for Respondents Nos. 2 and 3.

Date of hearing: 26th October, 2010.

JUDGMENT

NASIR-UL-MULK, J.---In order to supply electricity to the appellant, the Water and Power
Development Authority (hereinafter referred to as `WAPDA') had installed electric poles on
the land owned and possessed by the respondent, Masood Akhtar, who assailed the
installations in a suit filed on 1-12-2003 in the Court of Civil Judge, Jhelum. After contest by
the appellant and WAPDA, the plaintiffs suit was decreed directing the defendants to remove
the installations forthwith. On appeal by the appellant, the Additional District Judge
modified the judgment and decree of the Trial Court. While maintaining the declaration of
plaintiffs ownership of the land, the grant of mandatory injunction was set aside.
Simultaneously, the Appellate Court directed the officials of WAPDA to move the District
Magistrate for the grant of permission to install the electric poles and wires over the land of
the plaintiff and to accordingly grant him compensation for the use of his land. The High
Court in its revisional jurisdiction set aside the judgment and decree of the Appellate Court
and restored those of the trial Court.

2. Leave to appeal was granted by this Court on 13-8-2009 to the appellant for determination
of the following questions:--
 (a) Whether the learned High Court should have exercised revisional jurisdiction in
setting aside the well-reasoned judgment of the learned first appellate Court?

(b) Whether the installation of electric poles in the property of someone can be
objected to under section 12 of the Electricity Act and can compensation in
money be not considered lawful remedy?

(c) Whether the genuineness or validity of requirement for the installation of

electricity connection is, at all, relevant?

(d) Whether the respondent could challenge the installation, without challenging the
compensation order passed by the District Coordination Officer?

(e) Whether the litigation initiated by the respondent was based on mala fides and
personal vendetta?

(f) Whether the WAPDA is not bound to supply electricity connection to the
consumer and whether to remove any such hindrance is not the sole
responsibility of WAPDA?"

3. Mr. Abdul Karim Khan Kundi, Senior Advocate Supreme Court appearing for the
appellant placed reliance upon section 12 of the Electricity Act and submitted that WAPDA,
being a licensee under the Act, was authorized to lay down electric lines over any land. That
the evidence shows that at the time of installation of the poles and the supply lines, the son of
the plaintiff was present at the site and did not object to, or protest against, the installations.
He argued that the land where the poles have been installed is owned jointl y by nine persons
but the respondent alone filed a suit. He further maintained that in compliance of directions
by the Appellate Court, compensation for the use of the respondent's land by the WAPDA
has already been determined by the District Magistrate and the amount of compensation
deposited. It was pointed out that the only way to supply power to the appellant's land is
through the mode already adopted by the WAPDA. That in case, the installations are
removed, the appellant's tube-well installed for irrigation purposes would remain without
power supply and his land rendered barren. In support of his contentions, the learned counsel
relied upon "1986 CLC 150 National Cement Industries Ltd. v. Karachi Electric Supply
Corporation Ltd., PLD 1993 (Lahore) 237, WAPDA v. Pakistan Atomic Energy Commission
Employees Cooperative Housing Society Limited, PLD 2002 (Lahore) 28, Hakim Ali v.
Member Power, WAPDA and the leave granting order in the case of WAPDA v. Ch. Bashir
Ahmed (1996 SCMR 1516).

4. Mr. Gulzarin Kiyani; Senior Advocate Supreme Court representing the

plaintiff/respondent, Masood Akhtar, at the start pointed out that the appeal in the case of
WAPDA v. Ch. Bashir Ahmed (ibid) has been dismissed for non-prosecution and thus, the
leave granting order has no relevance left. With the help of a sketch produced in Court, copy
of which was handed over to the learned counsel for the appellant, Mr. Kiyani, explained that
not only the poles were installed but the electricity supply wires of 142 feet was laid over t he
respondent's land. He further pointed out that the supply of electricity to the appellant's land
can be routed through his own lands, though the route would be a bit longer. The learned
counsel alleged that the appellant, exercising his influence, got the work of installation by the
WAPDA completed in two days, at the time when he was away from the village. That soon
thereafter, the respondent in a week's time promptly filed the suit. In support of his
contentions, the learned counsel relied upon "AIR 1929 (Lahore) 226 Jit Singh v. Gujranwala
Electric Company, AIR 1960 (Madras) 374 S.M.E.S. Corporation Limited v. T. L.
Jagannatha Aiyar and others and AIR 1989 (Delhi) 51 Sh. Surat Singh v. Delhi Municipal
Corporation".

5. The respondent, Masood Akhtar, if not the sole, is undisputedly one of the owners and is
in occupation of the land where the electric poles were erected. Even the Appellate Court,
while setting aside the mandatory injunction granted to the plaintiff/respondent by the trial
Court, upheld the declaration that the property was owned by the plaintiff. It is also not
disputed that no prior permission from the District Magistrate was obtained for erecting the
poles as is required by Section 12 of the Electricity Act, which reads:--

"(1) Any licensee may, from time to time but subject always to the terms and
conditions of his license, within the area of supply, or when permitted by the terms of
his license to lay down or place electric supply-lines without the area of supply,
without that area ....

(a) ..

(b) ..
 (c) lay down and place electric supply-line and other works;

(d) ..

(e) do all other acts necessary for the due supply of energy.

(2) Nothing contained in subsection (1) shall be deemed to authorized or empower a

licensee, without the consent of the local authority or of the owner and occupier
concerned, as the case may be, to lay down or place any electric supply line or other
work in, through or against any building, or on, over or under any land not dedicated
to public use whereon, whereover or whereunder any electric supply-line or work has
not already been lawfully laid down or placed by such licensee:

Provided that any support of an aerial line or any stay or strut required for the sole
purpose of securing in position any support of an aerial line may be fixed on any
building or, having been so fixed, may be altered, notwithstanding the objection of the
owner or occupier of such building or land, if the District Magistrate by order in
writing so directs:"

The said provision clearly bars the licensee (WAPDA) to lay down any electricity supply line
or other work on or over any land without the consent of its owner or occupier. In case of
objection by the owner or the occupier of the land, the licensee is obliged to obtain written
permission from the District Magistrate before erecting any electric pole or laying aerial line.
In case, the District Magistrate grants such permission, he is obligated to fix the amount of
compensation or rent to be paid by the licensee to the owner or occupier of the land. This
process is to be undertaken before installation as the Magistrate is required to inquire into the
merits of the objection raised by the owner. Permission can be refused in appropriate cases.
The fixation of compensation by the District Magistrate upon direction of the Appellate
Court was not in terms of section 12 of the Act. The direction appears to have been
influenced by the equitable consideration that removal of the poles and power supply to the
appellant would be unfair and unjust. This was not relevant factor for the Appellate Court to
have taken into consideration in view of the clear statement of the law. Even if the case was
to be considered on equity, the Appellate Court lost sight of the fact that the installation of
the electric poles, the laying of aerial wiring to the land of the appellant and installation of
meter was completed with indecent haste of only two days when the plaintiff was away from
the village.

6. True that WAPDA is responsible for providing electricity connection to its consumers but
only in accordance with the procedure laid down in the law. As already determined, the
electric poles were erected on the land owned by the respondent and the aerial wires were
also laid over it. This having been done without the consent of the respondent and the written
permission of the District Magistrate, WAPDA had violated the provision of section 12 of
the Electricity Act. Since the findings of the Appellate Court were not in accord with the said
statutory provisions, the High Court was justified in setting them aside in its revisional
jurisdiction. This appeal, therefore, fails and the same is dismissed with no order as to cost.

M.H./N-21/SC Appeal dismissed.