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Petitioner: Messrs Murtaza Town Residence Society Association through General Secretary and another VS Respondent: National Electric Power Regulatory Authority (NEPRA), Islamabad and 2 others
Court Name: Sindh High Court Judge(s): Syed Hassan Azhar Rizvi, Rashida Asad Title:Messrs Murtaza Town Residence Society Association through General
Secretary and another vs National Electric Power Regulatory Authority (NEPRA), Islamabad and 2 others Case No.: Constitution Petition No. D-1701 of 2021 Date of Judgment:2021-11-04 Reported As: PLD 2022 Sindh 282 Result: Order accordingly Judgment ORDER SYED HASAN AZHA RIZVI, J.--The Petitioner No.1, Messrs Murtaza Town Residence Society is a registered Association under the Societies Registration Act, 1860, (hereinafter referred to Petitioner association) whereas petitioner No.2 is one of its members, resident of Murtaza Town, near alir Halt, Malir, Karachi. 2. On the first date of h airing i.e. 11.03.2021 counsel for the petitioners was directed to file amended title impleading the Federation through concerned Ministry. On 25.03.2021 Mr. Ijaz Ahmed Zahid filed C.M.A. No.8920/2021 for impleading PTCL as party in this petition as a respondent and provided copy of the application to the learned counsel for the petitioner and respondent/K-Electric, who waived notice thereof. An order was passed on 25.03.2021 in presence of the learned counsel for the parties that all the pending applications are to be fixed after two weeks for hearing and counter affidavit[s] and affidavit in rejoinder are to be exchanged between the parties. Mr. Ayan Mustafa Memon learned counsel for the respondent No.2 on 26.04.2021 filed a statement along with copies of several documents as mentioned in the statement. Statement was taken on record and copies thereof was provided to the learned counsel for the petitioners and intervenors on the same date. 3. Learned counsel for the petitioners, intervenor and respondent No.2 argued the applications (1) C.M.A. No.8920/2021 filed by the applicant/intervenor/PTCL and (2) C.M.A. No.7178/2021 filed by the petitioners for issuance of directions to the respondents for immediate installation of the electricity meters at the premises of the members of the petitioner No.1 including petitioner No.2 and applicant/intervenor/ PTCL to join in this petition as respondent. Counter affidavits and affidavit-in-
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rejoinder were exchanged between the learned counsel for the parties. Office has raised objections at the initial stage as to whether any other remedy is available or not. 4. Learned counsel for the petitioners contended that the petitioner association on behalf of its respective members applied for permanent -electricity connections for their respective units. Respondent No.2/K-Electric has already provided hook connections of electricity to the residents of the petitioner's society in order to cater the needs of the residents. Case of the petitioners is that the respondent No.2 issued challan of Rs.8,468,289/- for installation of the electric poles, wires and PMTs for providing permanent electricity connections to the respective residents/members of the petitioner association. Since the members could not pay entire amount in one go, therefore, they applied for easy instalments for providing electricity connections on permanent basis. Respondent No.2 accepted the request of the residents/members of the petitioner association and allowed them to pay the entire amount in three instalments. Petitioner association paid first instalment of Rs.3,378,316/- through pay order on 11.10.2019 to the respondent No.2. Second instalment of Rs.2,540,487/- on 21-01-2020 through pay order. The Petitioner association and the respondent No.2 were agreed that the third instalment will be paid after installation of the meters but as per learned counsel for the petitioner the respondent No.2 had failed to perform its part of obligation by installing electricity meters. Apart from the agreement between petitioner association and the respondent No.2, the petitioner association also paid an amount of Rs. 1,270,243/- through pay order on 08-10-2020 to the respondent No.2 but the respondent No.2 did not provide permanent electricity connections to the residents. It was also contended by the learned counsel for the petitioners that though the respondent No.2 has installed electric poles, wires and PMTs to provide electricity to the members of the petitioner association but has failed to install the electric meters despite receipt of charges as stated above. Petitioners have filed present petition with the following prayers: - "It is, therefore, prayed that this Honourable Court may be pleased to issue direction to the respondents to immediately installed the electricity meters at the premises/residents of the respective members of the petitioner's and operate the PMTs installed at the cost of the petitioners and to supply/provide electricity therefrom". 5. Learned counsel for the petitioners urged that the respondent No.2 has already provided electricity hook connections to the members of the petitioner association and to the other residents of the area from open wires, which often broke down, which ultimately resulted in failure of electric supply, causing great hardship to the residents of petitioner association. Facing such situation, the members of the petitioner association and the residents of the area approached to the respondent No.2 applied for regular connections and paid heavy amount for installation of PMTs, poles and meters for getting smooth supply of the electricity to their homes. Learned counsel for the petitioners contends that after passing of more than 08 months of the installation of PMTs, electric poles and separate wires, supply of electricity through their separate meters has not been started as yet. 6. Learned counsel for the petitioners has referred to the statement filed by the respondent No.2 in this petition as well as a settlement agreement entered in between respondent No.2/K-Electric and the intervenor/PTCL, compromise application, order and decree passed in Suit No.1482/2015 and order passed in Execution Application No.28/ 2020, whereby this Court has restrained respondent No.2 not to provide new connections to the residents of the PTCL colonies, therefore, the respondent No.2 per learned counsel for the petitioner admitted in his arguments that the respondent No.2 has stopped work of installation of electric meters on the premises of the Murtaza. Town, Malir Halt, Karachi. Per learned counsel for the petitioners, no name of Murtaza Town is referred to or mentioned in the settlement agreement, order passed in execution application as referred to by the learned counsel for the respondent No.2.
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7. With regard to the applicant/intervenor/PTCL's application under Order I, Rule 10, C.P.C. to implead PTCL a party to this suit. Learned counsel for the petitioners contends that houses in Murtaza Town are constructed on a piece of land measuring 04-15 acres, out of survey No.154, Deh Safooran, Tappo Mehran, Malik Karachi whereas total area of Survey No.154 is 23-00 acres as per own statement of PTCL/ intervenor. Learned counsel for the petitioners contends that PTCL/ Intervenor is claiming ownership right on 11-27 acres in survey No.154 as referred to in the affidavit and documents enclosed with the intervenor's application. Learned counsel further submitted that in Suit No.1482/2015 filed by the applicant/intervenor/PTCL against K-Electric, which was compromised in 2019 the intervenor/PTCL had not made residents of the Murtaza Town a party. He further contended that on the basis of settlement agreement in between the respondent No.2/K- Electric and intervenor/PTCL, the Court has never restrained the respondent No.2/K-Electric from supplying electricity to the residents of Murtaza Town and members of the petitioner association. Learned counsel for the petitioners has placed reliance upon the case reported in 2012 SCMR 773 wherein it is held that energy/electricity is essentially one of the significant facilities required by the citizens for manifold purposes, namely uplifting of their social and economic status. Non-supply of electricity to the citizens regularly, is tantamount to depriving them of one of the essentials of the life. He further relied upon the case reported in PLD 2014 Sindh 344 wherein it has been held that electricity is basic necessity of life. Common citizens cannot be deprived of basic necessity of life, even for one day on the pretext of strict compliance of policy manual. Denial of electricity to the citizens might amount to infringement of right guaranteed under Article 199 of the Constitution. Learned counsel for the petitioner has further relied upon the case reported in 2018 YLR 1391 wherein it was held that to enjoy the facility of electricity is fundamental right of all the citizens under the Constitution and particularly, in the present era when life seems to be impossible without electricity. The respondent has given application for Domestic three phase connection for his house which is admittedly his fundamental right, as such the learned single judge has rightly observed in the impugned order that to provide electricity to the respondent is his fundamental right which cannot be denied in any manner. He has also relied upon the case reported in 2001 CLC 321, 2001 CLC 252, 2010 YLR 2408, 2010 CLC 488 and 1999 SCMR 2550. 8. Learned counsel for the petitioners urged that intervenor/PTCL is not the owner of the property where the petitioners residents have built their houses and are in possession since long having registered sale deeds in their favour. He further submitted that the intervenor/PTCL has neither necessary nor proper party and the application filed by the intervenor is not maintainable in the present proceedings. Learned counsel for the petitioners urged that the petitioners have approached to this Court seeking enforcement of fundamental rights guaranteed under the Constitution and in present era no one can live without electricity and electricity being basic necessity of life may be provided through electric meters as prayed for in the instant petition. 9. Mr. Ayan Mustafa Memon, advocate for respondent No.2 placing reliance upon the statement filed by him on 24.03.2021 available at page-223 of the Court file referred an estimate dated 17.09.2019 provided by the respondent No.2 to the petitioner association for providing electricity to the petitioners/residents of the Murtaza Town near Malir Halt, Karachi. Copies thereof are enclosed along with statement at page-261. Amounts paid by the petitioners to the respondent No.2 for providing permanent electricity connections are not denied by the learned counsel for the respondent No.2. No counter affidavit to the petition has been filed either to the petition or the affidavit in support of the injunction application by the respondent No.2. Learned counsel for the respondent No.2 contended that at the time of installation of electricity meters to the Murtaza Town/petitioners, intervenor/PTCL had obtained a restraining order in Execution Application No.28/2020 (Suit No.1482/2015) filed by the PTCL/intervenor in this Court. Copy of the injunction application in the execution application, referred to above is enclosed at page-263 with the
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statement of the respondent No.2 whereas PTCL and respondent No.2 in the present petition were entered into a settlement/compromise by filing joint application bearing C.M.A. No.5082/2018. Copy thereof is enclosed at page-245 with the statement of the respondent No.2 whereupon an order was passed by this Court on 05.04.2018. Photocopy of certified copy of that order is enclosed "at page-235 with the statement of the respondent No.2 whereas the compromise decree dated 02.03.2019 at page-241 with the statement of the respondent No.2. 10. Learned counsel for the respondent No.2 urged that Murtaza Town where the members of the petitioner association and petitioner No.2 are residing is not PTCL Colony. He further submitted that Murtaza Town is not mentioned in the compromise application, order of this Court and the orders passed in the execution. However, as an abundant caution respondent No.2/K-Electric is not supplying electricity to the Murtaza Town. Learned counsel for the respondent No.2 has also referred to the Google map of Murtaza Town enclosed as annexure "R/4" at page-323 with the statement wherein office of PTCL/intervenor and residential area has been shown by arrow near to PTCL office and resident area. Learned counsel further submits that Sui Gas connections have already been provided to the residents of the Murtaza Town. Bills of gas are enclosed at pages-325 and 331 with the statement of the respondent No.2 and at page-333 of the statement sketch of the area of TNT Colony is shown whereas he referred to the telephone bill/invoice issued by the PTCL including the residents of Murtaza Town. Copy thereof are enclosed at pages-335 and 337 with the statement. Learned counsel for the respondent No.2 urged that the applications for providing electricity connections were entertained by the K-Electric/respondent No.2 as the owners of the houses who are residents of Murtaza Town produced proper Sale Deeds and supporting documents. Petitioners are using Kunda Connections and causing financial loss to the respondent No.2/K-Electric and in monsoon season there is danger of electrocution. Learned counsel for the respondent No.2 urged that PTCL/Intervenor themselves have provided telephone connections to the residents in the area but they are opposing to provide permanent electricity connections in the area to the petitioners. 11. Mr. Ijaz Ahmed Zahid learned counsel for the applicant/ intervenor/ PTCL the application bearing No.8920/2021 prayed to join PTCL as respondent being an essential and necessary party for the affective disposal of the present petition and has urged that the present petition is not maintainable for the following reasons: - "(1) A petition under-Article 199 can only be maintained by an "aggrieved person". The Petitioner No. 1 claims to be a society and cannot maintain a petition in representative capacity. (ii) Petitioner No. 2 has no title to the property for which he is seeking an electricity connection. Therefore, the petition is not maintainable by Petitioner No. 2. provision of electricity connections for the property which has been illegally encroached upon and that too in blatant disobedience of an interim injunction granted by this Hon'ble Court. If this petition is allowed, it will, amount to exercising the Constitutional and equitable jurisdiction of this Hon'ble Court to protect ill-gotten gains. (iv) Society cannot file a petition in representative capacity on behalf of its members. (v) Petitioner No. 1 claims to be a society of the residents of so-called Murtaza town. It is not a co- operative housing society and therefore has no interest in the land or development of the aforesaid locality, which in any case has no legal status. 12. Learned counsel for the applicant/intervenor/PTCL to support his contentions has placed reliance upon the case of Muntizma Committee, AL-Mustfa Colony (REGV.), Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others reported in PLD 1992 Karachi 54, the case of Democratic 'Workers' Union C.B.A. v. State Bank of Pakistan and others reported in 2002 PLC 614, the case of Messrs Mutual Funds Association of Pakistan (MUFAP) v. Federation of Pakistan and
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another reported in 2010 PLC 306 and the case of Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan reported in PLD 1964 Lahore 138. 13. Learned counsel for the applicant/PTCL contended that the members of the Petitioner association and the petitioner No.2 have no valid title documents and the title documents on the basis of which members of the petitioner No.1 and petitioner No.2 are relying are forged, fabricated and have been obtained by deceitful manner, which were issued by the officials having no power/authority under the law, hence Sale Deeds are void for the following reasons:-- "(a) Those have been executed during the pendency of interim orders passed in Suit No 305 of 2013; pending in this Court. (b) A false affidavit (at page 555 of the Court file) was given by Ghulam Murtaza (who is defendant No. 2 in Suit No. 305 of 2013) and the founder of Murtaza Town where the petitioners are claiming ownership of land to procure the registration of the purported sale deed; (c) This Hon'ble Court may take notice of the statement that was made by the Deputy Commissioner, Malir Town, in Suit No. 305 of 2013 and recorded in the order dated 07.05.2013 (filed in this case in court along with Statement dated 05-05-2021 and also attached hereto as Annex Syn-1). The Deputy Commissioner had confirmed that the defendants in Suit No. 305 of 2013 were encroachers. Accordingly, the said encroachers could not have possibly conveyed any title to Petitioner No. 2. (d) The revenue record based on which the title was claimed by the defendants in Suit No. 305 of 2013 (Rasool Buksh and Ghulam Murtaza) was also declared fake in the Board of Revenue Enquiry Report (page 213 of the Court file) and the revenue officials responsible for falsifying the records were dismissed from service and such dismissal orders are attached as Annex R/9 to R/11 (attached at page 65, 69 and 73 of the Rejoinder filed by the Intervenor in C.M.A. 8920 of 2021) (e) The purported sale deed was registered with Sub-Registrar, Gulshan Town, Karachi, who has no jurisdiction over this property since the same falls in the jurisdiction of Sub-Registrar Shah Faisal. Town as provided in the Notification dated 30.11.2005 issued by the Inspector General 'of Registration, Board of Revenue, Sindh, copy of the Notification is attached hereto as Annex Syn-2. Any document that is not registered with the Sub-Registrar of ' competent jurisdiction is void under section 28 of the Registration Act, 1908. Section 28 as applicable in the province of Sindh (after amendment by Registration (Sindh Amendment) Act, 2013 (Act VI of 2014) is reproduced below for ready reference: "28. Place of registration of documents relating to land. (1) Save as in this part otherwise provided, every document mentioned in section 17, subsection (1),' clauses (a), (b), (c), (d) and (e), section 17, subsection 42), shall be presented for registration in the office of a sub-registrar within whose sub-district the property to which such document relates is situate." 14. Learned counsel for the applicant/PTCL to support his contention has also relied upon the case of Erum Jafari v. KASB Bank through Manager and 10 others reported in 2006 CLD 1370, the case of Kh. Muhammad Yousuf v. Kh. Abdur Rashid and others reported in PLD 1967 Karachi 508. 15. With regard to the maintainability of this petition under Article 199 of the Islamic Republic of Pakistan, same can only be invoked by a person having valid/clear title. Per counsel for the applicant/PTCL, it is established law that in order to invoke the jurisdiction under Article 199 of the Constitution the person must have a title beyond any doubt. Petitioner No. 2 and the members of the petitioner association have no title to the land where they want to have the electricity connections installed. To support his contention, he has relied upon the case of Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others reported in 2011 SCMR 279. Per learned counsel for the. applicant/PTCL, Intervener's title to the subject land and the land which has been illegally and unauthorized encroached upon by the members of the petitioner association and petitioner No.2 is fully established from the public record including the following.
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"(i) Ghat Wadh Forms relating to Survey Nos. 154 and 242 (copies attached with the Statement dated 05-05-2021 filed in court); (ii) Board of Revenue Enquiry Report (page 213 of the Court file); (iii) SRO 430(1)12004 dated 07-06-2004 (page 51 of the Court file and relevant entries at page 59, Karachi East Entry 24 and Malir Karachi Entry 4); (iv) Confirmation of entry of PTCL land and Form II dated 12.4.2005 (page 63 of the Court file); 16. Learned counsel for the applicant/PTCL urged that PTCL is the lawful owner of the property and in possession of the same since 1950 and 1960s when such properties were acquired under the Land Acquisition Act, 1894. Petitioner or any persons on whose behalf they are purportedly claiming any rights have absolutely no title, rights or interest in the Applicant's aforesaid property. Petitioners have trespassed and encroached upon the PTCL's Properties in an attempt to illegally grab the Properties of the PTCL on the basis of forged, false and fabricated documents. The Cantonment Board, Faisal vide their letter dated 09-05-2019 (copy thereof is already attached at page 9 of the Rejoinder filed by the Intervenor in C.M.A. 8920 of-2021) confirmed that constructions raised by the members of the petitioner association and the petitioner No.2 in Murtaza Town are illegal. Inspection report of the learned Commissioner appointed by this Court in Suit No.305 of 2013 confirmed that the construction has been undertaken in breach of the injunction order. (Such report is available at page-137 of the Court file). 17. Learned counsel for the PTCL/intervenor further contended that the jurisdiction under Article 199 of the Constitution cannot be exercised to protect ill-gotten gains. He further submitted that it is settled principle of law that jurisdiction under Article 199 is an equitable jurisdiction and cannot be exercised to protect ill-gotten gains. Members of the Petitioner No. 1 and Petitioner No. 2 per learned counsel for the PTCL are encroachers and cannot be allowed to seek a direction of this Court to protect the ill-gotten gains. Learned counsel for. the applicant/PTCL in support of his contention relied upon the case of Muhammad Sharif and 4 others v. Sultan Hamayun and others reported in 2003 SCMR 1221, the case of Capt. Muhammad Iqbal v. Federation of Pakistan and another reported in 2009 MLD 810 and the case of Habib Ullah Khan v. Election Tribunal and others reported in 1985 CLC 2925 and the case of Lt.-Col. (R.) Muhammad Aslam v. Defence Housing Authority (DHA) and 2 others reported in PLD 2008 Lahore 261. 18. Learned counsel for the applicant/PTCL has also argued that there is abuse of process on the part of the petitioners in this petition. He further submitted that the petitioners acted in collusion with the real perpetrators of a scheme to encroach upon PTCL's property/land based on spurious claims. Per learned counsel, primary perpetrators of the scheme are Rasool Bux and his son Murtaza Abro (Ghulam Murtaza), who are defendants in Suit No. 305 of 2013 pending in this Court. 19. Per learned counsel for the applicant, the plaintiff in pending Suit No. 675 of 2005 filed an application (C.M.A. No. 73 of 2011), to implead, inter alia, PTCL a party to that Suit. Copy of such application is available at page-73 of the Court file. In said application, the perpetrators named above acknowledged that the subject property is in possession of PTCL. This application has remained pending till date as they never pursued the same. Messrs Rasool Bux and Murtaza then attempted forcible encroachment upon a part of PTCL property and PTCL was constrained to file Suit No. 305 of 2013. In said Suit two injunctive orders dated 18-03-2013 and dated 22-03-2013 were passed, which are still holding filed and are operating. Photocopies of those orders are enclosed at pages-117 and 123 of the Court file. Both Rasool Bux and Murtaza were evicted from the encroached area by. the District Administration as the Deputy Commissioner, Malir confirmed before this Court that they were encroachers and had no title of subject land in their favour. Such statement was recorded in the order dated 07-05-2013 in said suit. Copy thereof is enclosed along with Statement dated 05.05.2021 filed by Intervenor/applicant/PTCL. Both Rasool Bux and Murtaza did not give up their nefarious designs and started trespassing a portion of the suit property comprising the
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employee's colony of PTCL located in survey Nos. 153 and 154 wherein certain areas have been left open for amenity purposes like parks and open green spaces. 20. Per learned counsel for the applicant/intervenor the audacity of the defendants in Suit No.305/2013 and their accomplices is apparent from the fact 'that they announced housing scheme on PTCL's property without' having their ownership/title of the property and without obtaining any planning and approvals from the competent authorities. Intervenor/PTCL resisted such attempts of Rasool Bux and Murtaza Abro and made all efforts to have the interim orders implemented but unfortunately in collusion of Police and Revenue Officials did not allow the orders to be fully implemented. Murtaza Abro in order to protect their illegal…
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