PLD 2002 Lahore 28
Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ
HAKIM ALI —Appellant
Versus
MEMBER POWER, WAPDA and others—Respondents
Intra-Court Appeal No. 197 of 1993, heard on 24th May, 2001.
(a) Law Reforms Ordinance (XII of 1972)
----S, 3---Intra-Court Appeal---New plea, raising of---When a person has not pleaded
something and has not built up his case on the specific assertion, he is precluded
from taking such a plea before the appellate forum.
(b) Constitution of Pakistan (1973)—
Art, 24(3)(e)(ii)-—Protection of property rights—-Compulsory acquisition
Principles~-Nothing in Art. 24 of the Constitution affects validity of any law
provided for the acquisition of any class of property for the purposes of providing
housing and public facilities and services such as road, water supply, sewerage, gas
and electric power to all or any specified class of citizens.
(¢ Constitution of Pakistan (1973)—
“Arts, 4 & 24---Expression except in accordance with law’ and 'save in accordance
with law occurring in Art, 24 of the Constitution —Implication-—If @ person or
Authority is performing the functions and doing the WO in accordance with law, then
Arts. 4 & 24 of the Constitution hays! no applicability in the set of cireumstances-—-
Necessary implication of the expression is that when a person is deprived of his
property under the authority of law and according to the provisions of law, such
person has no grievance or ground to complain about the action under the provisions
of the Constitution---Right to hold property is subject to reasonable conditions which
include restriction of the same being acquired in accordance with law.
Sheikh Muhammad Anwar and another v. Pakistan through the Secretary, Ministry of
Communication, Islamabad and 2 others PLD 1989 Kar. 45 ref.(@) Pakistan Water and Power Development Authority Act (XXXI of 1958)—
~~$.14-Eleetricity Act (IX of 1910), $.12-—-Law Reforms Ordinanee (XII of 1972),
$.3---Intra-Court .Appeal---Acquisition of land--Installation of electric poles-—
Entering upon private land-—Dispute was regarding installation of electric poles and
towers in the land owned by the appellants-- Constitutional petition filed by the
appellant was dismissed by High Court-- Plea of the appellant was that the Authority
had no power under the law to enter private land unauthorisedly—Validity
Authority had the power and backing of law for installation of electric poles and also
for that purpose had the authority to enter upon the land for erecting poles, lay wires
to energize the towers for the supply of electricity and transmit the same-—Entry as
well as the installation of towers could not be considered to be unauthorized, as the
authority had ample powers to undertake all the actions, which were duly protected
under the law and no exception could be taken by any person-~ Tndgment passed by
fh Court was in accordance with law and intra-Court appeal was dismissed.
Muhammad Aslam Khan v. West Pakistan Province PLD 1962 Lab. 925; Kadir
Bakhsh v. WAPDA 1989 CLC 1615; Ghiasuddin v, Executive Engineer, WAPDA
1983 CLC 200 and Nazar Muhammad v. WAPDA PLD 1991 SC 715 ref.
Malik Saeed Hassan for Appellant.
Muhammad llyas Khan for Respondents,
Date of hearing: 24th May, 2001.
JUDGMENT
MIAN HAMID FAROOQ, J.—This appeal, filed under section 3 of the Law
Reforms Ordinance, 1972, calls in question the order, dated 9-5-1993, passed by the
learned Single Judge in Writ Petition No. 10856 of 1992, whereby the writ petition
was dismissed.
2. Apparently, the appellant, being aggrieved by the actions of the respondent-
authority of installation of electric towers and entry in his land, through the
institution of the aforementioned writ petition, challenged the said actions of the
sespondent-authority on different grounds, which have ably been tabulated in the
order under appeal, as such there is no need reiterate the same. The learned Judge in
Chamber, afier calling for the parawise comments from the respondent-authority and
afier hearing the parties dismissed the writ petition vide order, dated 9-5-1993, hence
the present appeal.3, Learned counsel fur the appellants, while reiterating the pleas raised in the writ
petition, has, with reference to Articles 4 and 24 of the Constitution of the Islamic
Republic of Pakistan, 1973, urged that the actions of the respondent-authority of
setting/installation of electricity towers for 220 K.V. are to be tested on the
touchstone of the aforesaid Articles of the Constitution He has further contended that
the actions of the respondent- authority of entering upon the land of the appellant
without any permission, acquisition and in an unreasonable manner cannot be
countenanced under any law, inasmuch as now show-cause notice was issued to the
appellant before taking the said actions. Conversely, the learned counsel for the
respondent -authority, while supporting the impugned actions of the respondents and
the order passed by the learned Single Judge, referring to certain provisions of the
Electricity Act, 1910, the WAPDA Act, 1958 and relying upon a few judgments has
argued that the respondent-authority is empowered to enter upon the land of any
person in order to carry out the works and the impugned actions are backed up by
law.
5. Before dealing with the contentions raised by the learned counsel of the respective
parties, it appears appropriate to recapitulate the relevant provisions of different
statutes, which have got direct nexus with the case in hand. Section 3 of the
Electricity Act, 1910, empowers Provincial Government to grant licence to supply
energy in any specified area and also to lay down or place electric supply-lines for
the conveyance and transmission of energy. Section 12 of the WAPDA Act, 1958.
provides that the "Authority", which according to section 2(i) of the WAPDA Act,
1958, means Water and Power Development Authority established under section 3 of
the Act, shall for the purposes of the Electricity Act be deemed to be a "licensee" and
shall have all the powers and discharge all the obligations of licensee, as such under
the said provision of law the status of a "Licensee! has been conferred upon WAPDA.
Under section 51 of the Electricity Act, the Provincial Government is competent to
confer on licensee, by means of a notification, powers which could be conferred and
possessed by Telegraphic Authority under the Telegraph Act, 1885. Pursuant to the
said provision of law, Notification No, SO-11(E)2/5-60, dated 6-6-1961. was issued
by the Govemor of West Pakistan, whereby all the powers were conferred upon
WAPDA, which the telegraph authority possesses under para. III of the Telegraph
Act with respect to placing of telegraph lines and poles ete. Section 14 of the
WAPDA Act, 1958.-read with section 12 of the Electricity Act. 1910, empowers
WAPDA, being the "Authority", to enter upon land for erecting poles. lay wires to
energize the power supply, as such WAPDA has the authority of putting the poles in
different places. Section 14 of the WAPDA Act further envisages that the Deputy
Commissioner of the concerned area will have the power to determine the sufficiencyor otherwise of compensation to be awarded by the Authority to such affectees by its
transmission of lines, as such the said provision of law specifically provides a forum,
which will decide about the compensation and about its sufficiency.
6. Reverting, to the contention raised by the leaned counsel regarding the alleged
contraventior of Articles 4 and 24 of the Constitution, examination of the contents of
the writ petition amply manifests that the appellants did not take this ground in this
writ petition and such a plea has been taken by him, for the first time, before this
Court, in appeal. It is settled law that when a person has not pleaded something and
hhas not built p up his case on the specific assertion, he is precluded from taking such
a plea before the appellate forum. In view of the established principle, the appellant
is debarred from taking such a plea, for the first time in his appeal and the same
cannot be entertained.
7. Even otherwise Article 24(3)(e)(ii) of the Constitution envisages that nothing in
this Article shall affect the validity of any law provided for the acquisition of any
class of property for the purposes of providing housing and public facilities and
services such as road, water supply, sewerage, gas and electric power to all or any
specified class of-citizens. In our view the said sub-Article provides a complete
answer to the contention raised by the learned counsel.
8, Article 4(2)(a) of the Constitution provides that no action detrimental to the life,
liberty, body, reputation or property of any person shall be taken gxcept ipaccordance with Jaw. Article 24(1) provides that no person shall be deprived of his
property save in accordance with Jaw. From the reading of Articles 4 and 24 of the
Constitution the wordings "except in accordance with law” and "save in accordance
with law" are of great significance. It means that if a person or authority is
performing the functions and doing the work in accordance with law, then these
Articles of C the Constitution will have no applicability in the set of circumstances.
The necessary implication would be that when a person is deprived of his property
under the authority of law and according to the provisions of law, he will have no
grievance or ground to complaint about the said action under the provisions of the
Constitution. Moreover, right to hold property is subject to reasonable conditions,
which inchide the restriction of the same being acquired in accordance with law. It
has been held in Sheikh Muhammad Anwar and another v. Pakistan through the
Secretary, Ministry of Communication, Islamabad and 2 others (PLD 1989 Karachi
45) that if the object of acquisition is in the public interest and the same is not
without payment of compensation, the said action will not be violative of the
provisions of Articles 4, 23 and 24 of the Constitution and the provisions of the
Constitution themselves provide the right to hold the property subject to reasonable
restrictions, which include the restriction of the same being acquired in accordance
with law. Needless to reiterate that section 14 of the WAPDA Act provides a form
for determination of compensation.
Thus, we are not impressed by the argument of the learned counsel and his reliance
on Articles 4 and 24 of the Constitution is misplaced as well as misconceived.9. Resume of the different provisions of law, as given in para. No. 5, would amply
manifest that the respondent-authority has the power and backing of law for
installation of electric poles and also for that purpose have the authority to enter upon
the land for erecting poles, lay wires to energize the powers for the supply of
electricity and transmit the same. Moreover, the: learned Single Judge after relying
upon Muhammad Aslam Khan v. West Pakistan Province (PLD 1962 Lahore 925),
Kadir Bakhsh v. WAPDA (1989 D CLC 1615), Ghiasuddin vy. Executive Engineer,
WAPDA (1989 CLC 200) and Nazar Muhammad v. WAPDA (PLD 1991 SC 715)
has rightly come to the conclusion that the entry as well as the installation of towers
cannot be considered to be unauthorized, as the respondent-authority has the ample
powers to undertake all the aforementioned actions, which are duly protected under
the law and no exception can be taken by any person. As observed above, the
respondent-authority has the right to enter upon the land for erecting pleas and lay
wires to energize the power of supply of electricity.
10, For the aforesaid reasons, there appears to be no contravention of any provision
of the law committed by the respondents-authority by laying wires and installation of
electric towers, the judgment rendered by the leamed Single Judge has been passed
perfectly in accordance with law and E we are not inclined to interfere in the findings
rendered by the leamed Judge in Chamber. Thus, the appeal, which is devoid of
merits, is dismissed with no order as to costs.
11. Before parting with the case, it appears necessary to import directions to the
respondent-anthority to initiate, if not already done, the proceedings for the award of
compensation to the appellant as provided in law and also to expedite the matter in
this respect.
QM.H/M.A.K./H-S6/L Appeal dismissed