NATIONAL CEMENT INDUSTRIES LTD. Versus KARACHI ELECTRIC SUPPLY CORPORATION LTD.

ABDUL QADEER CHAUDHRY, J. ‑‑The petitioner in this petition seeks direction that respondent No. 1 has no authority, jurisdiction or power to grant any electric connections or to lay down or place any electric poles or to do any work over or under the leased land of the petitioner, and that the respondent cannot grant any electric connection to a non‑owner occupant /trespassers on the property of the petitioner.

2. The petitioner claims to be owner of 200 Acres of land in Survey No. 193 at Deb Okewari, Tufail Nagar, District East, Karachi. The lease of the land was granted in favour of the petitioner which was renewed for a period of 30 years from the year 1967‑68. Some unknown persons have encroached upon the petitioner's leased land and this fact was brought to the notice of the local authorities for removing them from the petitioner's land. A joint survey was carried out between the petitioner's Company and the respondent No.l and the boundaries of the leased land of the petitioner's Company were established. The petitioner Company asked the respondent not to grant illegal connections to the enroachers in their leased land. On the request of the respondent Corporation petitioner filed a civil suit in Court of Civil Judge, Karachi praying for injunction restraining the respondent from giving electric connection to unauthorised occupants on the leased land of the petitioner. The respondent No.l filed an application under Order VII, rule 11, C.P.C. read with section 11 and schedules 5 and 6 of the Electricity Act, 1910 contending that respondent is entitled to give electric connections to every applicant. The application was granted by the Civil Judge. It was observed by the civil Court that the defendant (present respondent No.l) has already provided electric connection to some of the occupants of the property and according to section 22 of the Electricity Act, the defendant is obliged to provide electricity connection to other applicants and as all the interested and necessary parties have not been impleaded in the suit as such the suit of the plaintiff was hit by the provisions of Electricity Act and consequently the plaint was rejected. An appeal was filed against the order of Civil Judge which was disposed of by an Additional District Judge, who concurred with the finding of the learned Civil Judge and dismissed the appeal. A revision petition was filed in the High Court against the respondent. The learned Single Judge dismissed the said revision of the petitioner for not jointing the encroachers as a party. It is the contention of the petitioner that on the date of hearing of the revision petition the parties agree to withdraw the revision with the permission of the Court to either file a fresh suit or a Constitutional petition.

The petitioner in these circumstances had filed the present Constitutional petition against the respondent No.1 only but order dated 24‑8‑1983 of this Court show that petitioner's counsel requested for time to amend the petition and join such other persons as respondents to whom electricity supply is to be given. The petitioner thereafter filed the amended petition. Counter‑affidavit was filed by Najib Ashraf on behalf of respondent No. 1 wherein it is stated that the petitioner has filed the present petition on the same facts and ground on which the suit had been filed. There are about 130 applicants but the petitioner had not joined all the applicants for electricity connection in the area. The necessary permission was granted to the respondent No. 1 to undertake the proposed work in the area in question. The respondents Nos. 2 and 3 in their counter‑affidavit have stated that they are lawful and legal owner of the houses in their occupation and they have no electricity at all in their houses, hence the question of disconnection does not arise. That about 80 applicants have already made the payment to respondent No.1 for electricity connection.

3. We have heard learned counsel for the parties. Mr. A.H. Mirza, learned counsel for the petitioner has submitted that the present petition is competent irrespective of the fact that the plaint of the petitioner had been rejected under Order VII, rule 11, C.P.C. and he had withdrawn the revision petition filed in the High Court against the orders of Civil Judge and Additional District Judge. He has referred to section 12(2) of the Electricity Act, 1910 which provides that no licensee is authorised or empowered without the consent of the local authority or of the owner and occupier concerned to lay down or place any electric supply line or other work in, through or against any building. Thus, according to the learned counsel as the petitioner is the owner of the disputed land, therefore, no sanction can be granted to the respondent No.1 for giving connection to the unauthorised persons. The permission had been accorded by the Deputy Commissioner Karachi in 1975 to the respondent No. 1 to provide electricity to the houses in Shanti Nagar near Cement Factory, Karachi.

Under subsection (4) of section 12 every order made by a District Magistrate under subsection (2) shall be subject to revision by the Provincial Government, but the petitioner has not approached the Provincial Government and thus the alternate remedy available to him has not been availed of by him. On this short ground the present petition is not maintainable. However, it has been contended by the learned counsel that as the permission accorded by the Deputy Commissioner is illegal and without jurisdiction, therefore, the present petition is competent. The petitioner had himself filed the civil suit on the same grounds and his plaint was rejected on two‑fold grounds namely, he had not impleaded the persons to be affected by the order, if any, passed by the civil Court and the suit was hit by the provisions of Electricity Act. The finding of the Civil Judge was confirmed by the Additional Sessions Judge and the petitioner himself did not press his revision petition filed in the High Court. The result would be that the civil Court has finally determined a point which according to us cannot be reopened in a constitutional petition. No fresh grounds have been urged in this petition which entitles him to the discretionary relief. Additionally the petitioner has not challenged the judgments of the Civil Judge and Additional District Judge in this petition and, therefore,[ these findings are final and petitioner is estopped to challenge the same. The Civil Court has already held that the petitioner had not impleaded the necessary parties in the suit. In the present proceedings also the petitioner had not impleaded the necessary parties. According to the respondent No. 1 there are about 143 applicants who have filed applications for electricity connections. The respondents Nos. 2 and 3 have also stated that about 80 applicants have already made the payment to the respondent No.l for electricity connection. These averments have not been repudiated by the petitioner. It has also been denied by the respondents that the persons occupying the disputed land are in unauthorised occupation of the same. Respondents Nos. 2 and 3 impleaded by the petitioner have stated that they are in occupation of the land in their occupation in their own rights. The learned counsel for the petitioner has referred to the cases of Municipal Committee, Multan through its Chairman v. Burmah‑Shell Storage and Distributing Co. of Pakistan Ltd. and another P L D 1976 Lah. 726 and Shershah Industries Ltd. v. The Government of Sind and 4 others P L D 1982 Kar. 653 in support of his contention that in case of total lack of absence of jurisdiction the Courts in general will not hesitate in entertaining a constitutional petition. In the present case proper sanction had been accorded by the Deputy Commissioner to the respondent No. 1. The respondents Nos. 2 and 3 have denied the allegation of the petitioner and there is no evidence on record that either the respondents Nos. 2 and 3 or some other persons have encroached upon the land of the petitioner and this fact would require detailed investigation and in the absence of any positive finding it cannot be said on mere assertion of the petitioner that the respondent No.l is giving connection to unauthorised persons. The persons who are to be affected must have been impleaded as respondents so that they would have an opportunity to meet the allegations made by the petitioner.

In view of all these defects, the present petition has no force, the same stand dismissed.

By our short order, dated 19‑9‑1985 we had dismissed the petition with no order as to costs. The above are the reasons in support of such order.

A.A Petition dismissed.