Stereo. HC JD A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
…
ICA No.250/2020
MEPCO Vs Akaash Jibraeel etc.
…..
JUDGMENT
Date of hearing: 10.02.2021.
Appellant by:
Ch. Saleem Akhtar Warraich, Advocate
Mr. Amer Aziz Qazi, Advocate
Mr. Sajjad Khan Malazai, Advocate
Mr. Abdul Sattar Malik, Advocate
Malik Murid Hussain Mukowal, Advocate
Mr. Abdul Sattar, Advocate
Jamshed Ali Niazi, Director Legal,
MEPCO
Respondents by:
Rao Muhammad Iqbal, Advocate
Qazi M. Waseem Abbas, Rashid Bashir
Khan, Imran Ahmad JangLa, Advocates.
Mr. Bilal Amin, Advocate
Ch. Muhammad Bakhsh Mangat, Advocate
M/S Muhammad Yousaf Zubair,
Advocate and Muhammad Imran
Hameed Sindhu, Advocate.
Mr. Muhammad Ashraf Qureshi, Advocate
M/S Shahzad Saleem Khan Baloch,
Advocate and Faisal Shahzad Awan, Advocate
Khawaja Qaiser Butt, Advocate
Rana Muhammad Azhar Iqbal, Advocate
Ch. Khalid Mahmood Arain, Advocate
Abid Aziz Sheikh, J:- This consolidated judgment will also decide ICAs mentioned in Appendix A of this judgment as common question of law and facts are involved in all these appeals.
- Relevant facts which are more or less identical in all these appeals are that respondents have developed private housing schemes and applied for electrification of said housing schemes to Multan Electric Power Company (MEPCO) (appellant). For electrification of those housing schemes, the appellant demanded “No Objection Certificate” (NOC) from the respective Development Authorities to the effect that the master plan of the society has been approved by the concerned Development Authorities. The respondent being aggrieved filed constitutional petitions which were disposed of with direction that MEPCO will not demand NOC from Multan Development Authority (MDA)/Civic or concerned Authority for the electrification of the colony. The appellant being aggrieved of said direction in various writ petitions filed these appeals.
- Learned counsel for the appellant submits that the requirement of NOC is prescribed under WAPDA Guidelines dated 26.09.1993 and also MEPCO Office Order dated 07.11.2019. He submits that even under relevant rules, the respondents are bound to procure NOC from the Development Authorities. He submits that some of the appeals were withdrawn ICA No. 250 of 2020
MEPCO VS. AKAASH JIBRAEEL ETC.
-3-
because the housing schemes already agreed before learned Single Bench to produce NOC from the concerned Development Authorities. He further submits that the requirement of NOC being a policy matter could not be interfered in the constitutional jurisdiction. He placed reliance on M/s Power Construction
Corporation of China Ltd. Through Authorized Representative vs. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others (PLD 2017 SC 83). - Learned counsel for the respondents on the other hand submits that as per Policy of NEPRA dated 13.01.2021, there is no requirement of approved map or site plan or NOC by the concerned authorities for electrification. He submits that National Electric Power Regulatory Authority (NEPRA) being regulatory
authority, its policy is binding on MEPCO. He further submits that the appellant has withdrawn some of the ICAs including ICA No.90/2020 and also provided electricity to various housing societies without NOC from the development authorities, hence respondents have been discriminated. The learned counsel placed reliance on Chief Executive, GEPCO and 3 others vs. Asghar Ali Rana (2018 YLR 1391) to argue that being vested rights already accrued, the NOC cannot be demanded. - Arguments heard. The single moot legal question involved in all these appeals is that whether MEPCO could demand NOC from the concerned development authorities to the effect that housing society is duly approved, for the electrification ICA No. 250 of 2020 MEPCO VS. AKAASH JIBRAEEL ETC.
-4- of respondents housing societies. Admittedly appellant is licencee of NEPRA for distribution of electricity in the territory specified as per term and condition of licence. MEPCO is company though owned and controlled by the Federal Government but having its own Board of Directors to run and manage the affairs of the company. - The Board of Directors of MEPCO in its meeting held on 26.10.2019 accorded approved for implementation of revised SOPs for external electrification of housing schemes/colonies/ societies and accordingly SOPs and guidelines were issued through Office Order dated 07.11.2019. For convenience, the
relevant SOP is reproduced hereunder:- Documents required to be submitted by the sponsor of housing scheme opted for one point supply. - Approval from respective Development Authority/Town Municipal Administration/Cantonment Board/Concerned Civic Authority. This includes:
. Approval Letter . Approved Master plan of society with sanction letter. The above SOP shows that for supply of electricity, the sponsor of the society is required to provide approval from the respective Development Authority including approval letter and approved master plan of the society with sanction letter. Even before appellant company was constituted, the WAPDA had similar standards and criteria for electrification of housing schemes. The said criteria is mentioned in WAPDA Officer Order dated 26.10.1993 and relevant clause is reproduced as under:-
(1) The lay out plan, duly approved and signed by the concerned Department/Authority or Local Body alongwith letter of approval shall be supplied by
the sponsor/consultant with design documents to ensure the authenticity of approval of the competent authority. - It is relevant to note that beside above SOPs and criteria, in exercise of power under section 191 of the Punjab Local Government Ordinance, 2001 (Ordinance), The Punjab Private Housing Schemes and Land Sub-Division Rules, 2010 (Rules) have been framed. Rule 30 of said Rules deals with
electricity and street light plan of the society and rule 2(ix) defines Developer. For ease of reference, these provisions are reproduced hereunder:- - Definitions:- In these rules:
(ix). “developer” means a company or a cooperative society or a firm or an owner of land who intends to develop a scheme or who has developed a scheme after approval. - Electricity and street light plan-
(1) A developer shall
(a)prepare design and specifications of electricity and street light in accordance with law, rules, master plan and guidelines of Local Government
responsible for approval of the same;
(b)submit, within one year of the sanction of the scheme, these design and specifications to WAPDA responsible for provision of electricity
and street light for approval; and
(c) A developer shall ensure that designs are prepared by an electrical engineer registered with the Pakistan Engineering Council and approved by WAPDA responsible for provision of electricity.
(2) WAPDA shall, within twenty days, convey objections, if any, to a developer under intimation of a Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority.
The plain reading of definition of word „Developer‟ shows that it means a company, co-operative society, firm, or owner of land who intend to develop a scheme or has developed a scheme after approval. Under rule 30, only such developer can submit design and specification of electricity in accordance with law, rules, master plan and guidelines of Local Government responsible for approval of such scheme and submit within one year of the sanction of the scheme. Rule further provides that in case there is any objection, the WAPDA shall convey those objections to the developer under intimation to the development authority. - The above referred office order dated 07.11.2019 of MEPCO, Standards and Criteria of WAPDA dated 26.10.1993 and Rules, specifically provide for the approval of the respective development authority for electrification of the housing schemes. The obvious purpose of prior approval of scheme, is to protect the
interest of general public and to ensure that housing schemes are duly approved before they apply for electrification and offer plots to public at large. - The NEPRA letter dated 13.01.2021 referred to by learned counsel for the respondents, shows that same relates to rural areas only where application is for second connection or extension of permanent/regular connection already existed or for the premises which is located inside approved housing scheme.
For ready reference, the relevant part of said instructions is reproduced hereunder:-
(DISCO to insert its name) in case of rural areas where map/site plan/layout plan/NOC are not applicable required.
i. There shall be no requirement of approved map or approved site plan or approved layout plan (LOP) or NOC by the Civic Agency/Authority for another
connection or for extensions reduction of load where already any permanent/regular connection exists at the premises.
ii. There shall be no requirement of approved map or approved site plan or approved layout plan (LOP) or NOC by the Civil Agency/Authority for premises which are located inside approved housing scheme/societies/ plazas/multi storey buildings.
iii. There shall be no requirement of approved map or approved site plan or approved layout plan (LOP) or NOC by the Civil Agency/Authority in the areas where the land is either not acquired by the concerned Civil Agency/Authority or the area is not developed by the
concerned Civil Agency/Authority.
The careful reading of above instructions of NEPRA demonstrates that these are exceptions to general rule and unless the case be covered under these exceptions, the approval of scheme and NOC is required for electrification. These instructions by NEPRA rather further support the claim of appellant, that electricity connection cannot be provided to housing societies unless they are approved and an NOC produced from the concerned Civic Agency/Authority. - The argument of learned counsel for the respondents that some of the ICAs have been withdrawn by MEPCO has been duly explained by the learned counsel for the appellant, that where the learned Single Benches, already directed to those societies/petitioners to obtain NOC from the Development Authority for supply of electricity, the appeals were withdrawn.
Further the case of Asghar Ali Rana supra referred to by the respondents, does not relate to a housing society but same is of an individual regarding his domestic house electricity connection, therefore, said judgment is not applicable to the facts and circumstances of this case. - The honourable Supreme Court in Government of Sindh through the Chief Secretary and others vs. Khalil Ahmed and others (1994 SCMR 782), held that acts of public functionaries are not to be set at naught in collateral proceedings rather the Courts are under legal obligation to explore every possible explanation for their validity. The honourable Supreme Court in The Chairman, East Pakistan Railway Board, Chttagong etc. vs. Abdul Majid Sardar, Ticket Collector, Pakistan (PLD 1965 SC
725) and Lahore Improvement Trust, Lahore through its Chairman vs. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 811) held that the act performed and order made by public functionaries deserve due regard by the Court and every possible explanation for their
validity be explored. - Similarly in Zarai Taraqiati Bank Limited and others vs. Said Rehman and others (2013 SCMR 642), the honourable Supreme Court held that statutory authorities and functionaries cannot deviate or act in derogation to rules or regulations applicable. The public authorities are required to perform
particular function within the frame work of law and not its derogation. The same view was also expressed in Secretary, Government of Punjab and others vs. Khalid Hussain Hamdani and 2 others (2013 SCMR 817), Muhammad Yasin vs. Federation of Pakistan through Secretary, Establishment
Division, Islamabad and others (PLD 2012 SC 132), Muhammad Afsar vs. Malik Muhammad Farooq (2012 SCMR 274), Raja Mujahid Muzaffar and others vs. Federation of Pakistan and others (2012 SCMR 1651), Watan Party and another vs. Federation of Pakistan and others (PLD 2011 SC 997), Suo
motu case In the matter of (Violation of Public Procurement Rules, 2004) (PLD 2011 SC 927) and Tariq Aziz ud Din and others (2010 SCMR 1301). It is also well settled that where law provides things to be done in particular manner, then it must be done in that manner and further no one has vested right in policy
decision of the Authority and Courts also cannot interfere in policy matters unless they are found irrational and arbitrary by the Court. - The perusal of impugned orders show that without holding the relevant Rules, SOPs or instructions being unconstitutional, the appellant was directed not to demand any NOC from the Development Authorities for the electrification of the housing societies. In view of aforesaid settled propositions of
law, the learned Single Judge could not direct the appellant/MEPCO not to demand NOC from the development authorities, as such direction would amount to direct the public functionaries to act in derogation of the applicable rules and policy. - In view of above discussion, all these appeals are allowed to the effect that appellant MEPCO may demand required documents including NOC from the concerned Development Authorities, under the applicable SOPs, Policy and Rules for the supply of electricity to the housing societies.
- (Ch. Muhammad Iqbal) (Abid Aziz Sheikh) Judge Judge
Approved for reporting.
Judge
Riaz Ahmad
APPENDIX ‘A’
S# CASE NO TITLE
1 ICA No. 143-20 MEPCO VS MUHAMMAD SHAFIQ ETC
2 ICA No. 151-20 MEPCO VS ANSAR ILYAS ETC
3 ICA No. 340-20 MEPCO VS MUHAMMAD AZAM ETC
4 ICA No. 264-20 MEPCO VS SHAKIL SAJID ETC
5 ICA No. 283-20 MEPCO VS MUHAMMAD MUBEEN HAIDER ETC
6 ICA No. 156-20 MEPCO VS MUHAMMAD SHAHID ETC
7 ICA No. 263-20 MEPCO VS IMRAN ASGHAR ETC
8 ICA No. 280-20 MEPCO VS TALLAT MEHMOOD ETC
9 ICA No. 284-20 MEPCO VS ALLAH WASAY ETC
10 ICA No. 286-20 MEPCO VS SHAHZAD GLL ETC
11 ICA No. 285-20 MEPCO VS ADNAN SHAMS ETC
12 ICA No. 282-20 MEPCO VS SARDAR MAJID AZEEM ETC
13 ICA No. 155-20 MEPCO VS SAUD SATTAR RAMAY ETC
14 ICA No. 347-20 MEPCO VS MUHAMMAD RIZWAN ETC
15 ICA No. 149-20 MEPCO VS SH MUHAMMAD AFZAL ETC
16 ICA No. 79-20 MEPCO VS ARSLAN ALI ETC
17 ICA No. 80-20 MEPCO VS MUHAMMAD TOUQEER UL HASSAN ETC
18 ICA No. 152-20 MEPCO VS TARIQ JAVED ETC
19 ICA No. 154-20 MEPCO VS EHTSHAM UL HAQ ETC
20 ICA No. 144-20 MEPCO VS MUHAMMAD YASIR SAITHI ETC
21 ICA No. 281-20 MEPCO VS GHULAM HASHIM ETC
22 ICA No. 275-20 MEPCO VS MUHAMMAD AMJAD ETC
23 ICA No. 266-20 MEPCO VS MUHAMMAD NAIM ETC
24 ICA No. 276-20 MEPCO VS MUHAMMAD RAZZAQ ETC
25 ICA No. 299-20 MEPCO VS ASAD MEHMOOD ETC.
26 ICA No. 293-20 NEPCO VS LIAQAT ALI ETC
27 ICA No. 248-20 MEPCO VS ARSHAD JAVED ETC
28 ICA No. 247-20 MEPCO VS LIAQAT ALI ETC
29 ICA No. 249-20 MEPCO VS HAFIZ MUHAMMAD AZHAR BODLA ETC
30 ICA No. 153-20 MEPCO VS SAEED UR REHMAN SHAH ETC
31 ICA No. 296-20 MEPCO VS RANA MUHAMMAD ASLAM ETC
32 ICA No. 298-20 MEPCO VS ABDUL SAMI ETC
33 ICA No. 302-20 MEPCO VS FIRDOS FATIMA ETC
34 ICA No. 294-20 MEPCO VS TAHIR NADEEM ETC
35 ICA No. 295-20 MEPCO VS PARVAIZ AHMAD ETC
36 ICA No. 297-20 MEPCO VS MUHAMMAD SHAFIQUE ETC
37 ICA No. 319-20 MEPCO VS INAM UL HAQ ETC
38 ICA No. 303-20 MEPCO VS HAFEEZ UR REHMAN ETC
39 ICA No. 330-20 MEPCO VS HASEEBA RAMZAN ETC
40 ICA No. 304-20 MEPCO VS MUHAMMAD ISRAR AKHTAR ETC
41 ICA No. 337-20 MEPCO VS MUHAMMAD AZEEM ETC
42 ICA No. 320-20 MEPCO VS MUHAMMAD FAISAL IFTEKHAR ETC
43 ICA No. 321-20 MEPCO VS QAMAR ZAMAN ETC
44 ICA No. 307-20 MEPCO VS MUHAMMAD ARSHAD MEHMOOD KHAKWANI
ETC
45 ICA No. 339-20 MEPCO VS ALI IMRAN ETC
46 ICA No. 309-20 MEPCO VS MAZAHARA SHAMS ETC
47 ICA No. 322-20 MEPCO VS IFTEKHAR AHMAD ETC
48 ICA No. 315-20 MEPCO VS SHAGUFTA TAHIR ETC
49 ICA No. 325-20 MEPCO VS MUHAMMAD SHAHZAD ETC
50 ICA No. 331-20 MEPCO VS SUMERA SHAMS ETC
S# CASE NO TITLE
51 ICA No. 306-20 MEPCO VS RAZIA PARVEEN ETC
52 ICA No. 326-20 MEPCO VS SHAHZAD LATIF ETC
53 ICA No. 318-20 MEPCO VS IRFAN SHAMS ETC
54 ICA No. 336-20 MEPCO VS ABDUL MAJEED ETC
55 ICA No. 305-20 MEPCO VS MUHAMMAD AHMAD ETC
56 ICA No. 324-20 MEPCO VS KH MUHAMMAD FAKHAR UL MAHMOOD ETC
57 ICA No. 314-20 MEPCO VS SALMAN AFZAL ETC
58 ICA No. 338-20 MEPCO VS INTAZAR HUSSAIN ETC
59 ICA No. 308-20 MEPCO VS KHIZAR EHSAN ETC
60 ICA No. 278-20 MEPCO VS MUHAMMAD FARHAN ZIA ETC
61 ICA No. 277-20 MEPCO VS MUHAMMAD MUSHTAQ ETC
62 ICA No. 273-20 MEPCO VS MUHAMMAD TAHIR IQBAL ETC
63 ICA No. 272-20 MEPCO VS REHAN ZIA ETC
64 ICA No. 271-20 MEPOC VS EHSAN IJAZ ETC
65 ICA No. 279-20 MEPCO VS MUHAMMAD SHAFIQUE SALEEM ETC
66 ICA No. 270-20 MEPCO VS FAYYAZ AHMAD ETC
67 ICA No. 327-20 MEPCO VS SHAGUFTA NAHEED ETC
68 ICA No. 274-20 MEPCO VS ZAIN UL ABIDEEN ETC
69 ICA No. 267-20 MEPCO VS SHAKOOR AHMAD ETC
70 ICA No. 351-20 MEPCO VS CH RAHEEL AKRAM ETC
71 ICA No. 260-20 MEPCO VS MUHAMMAD ASHIQ ETC
72 ICA No. 345-20 MEPCO VS GHULAM ARBI ETC
73 ICA No. 269-20 MEPCO VS HAMZA WAQAS TAHIR ETC
74 ICA No. 255-20 MEPCO VS MUHAMMAD BILAL ETC
75 ICA No. 106-20 MEPCO VS NAEEM ASHRAF ETC
76 ICA No. 93-20 MEPCO VS ABDUL HAYEE CHOUDARY ETC
77 ICA No. 87-20 MEPCO VS CH MUHAMMAD AKRAM ETC
78 ICA No. 95-20 MEPCO VS ISRAR UL HAQ ETC
79 ICA No. 259-20 MEPCO VS MUHAMMAD JAMEEL ETC
80 ICA No. 104-20 MEPCO VS USMAN AHMAD ETC
81 ICA No. 257-20 MEPCO VS ABDUL WAHID ETC
82 ICA No. 97-20 MEPCO VS MUHAMMAD ASGHAR ETC
83 ICA No. 103-20 MEPCO VS RANA MUHAMMAD ASLAM ETC
84 ICA No. 252-20 MEPCO VS MUHAMMAD AJMAL KHAN RANA ETC
85 ICA No. 100-20 MEPCO VS MUHAMMAD ISMAIL ETC
86 ICA No. 261-20 MEPCO VS IBAD ALI ETC
87 ICA No. 268-20 MEPCO VS ABDUL HAYEE CH ETC
88 ICA No. 105-20 MEPCO VS HAMZA RAZZAQ ETC
89 ICA No. 91-20 MEPCO VS KHAN SHABBIR ETC
90 ICA No. 265-20 MEPCO VS MUHAMMAD RAFIQUE ETC
91 ICA No. 101-20 MEPCO VS NOOR MUHAMMAD ETC
92 ICA No. 98-20 MEPCO VS TALIB HUSSAIN BHATTI ETC
93 ICA No. 96-20 MEPCO VS HAMEED ASGHAR ETC
94 ICA No. 262-20 MEPCO VS MUHAMMAD NAWAZ ETC
95 ICA No. 94-20 MEPCO VS NASEER AHMAD ETC
96 ICA No. 85-20 MEPCO VS MUHAMMAD RIAZ ETC
97 ICA No. 254-20 • MEPCO VS HAFIZ MUHAMMAD AZHAR BODLA ETC
98 ICA No. 84-20 MEPCO VS NASEER AHMAD ETC
99 ICA No. 253-20 MEPCO VS MUHAMMAD ARSHAD MEHMOOD KHAKWANI
ETC
100 ICA No. 251-20 MEPCO VS MUHAMMAD JUNAID SADIQ ETC
101 ICA No. 256-20 MEPCO VS ABDUL REHMAN ETC
102 ICA No. 323-20 MEPCO VS SHAZIA ANSAR ETC
103 ICA No. 328-20 MEPCO VS IRSHAD BEGUM ETC
S# CASE NO TITLE
104 ICA No. 352-20 MEPCO VS MAQSOOD AHMAD ETC
105 ICA No. 350-20 MEPCO VS MUHAMMAD LATIF ETC
106 ICA No. 346-20 MEPCO VS ALLAH DAD KHAN ETC
107 ICA No. 348-20 MEPCO VS AYESHA RAMZAN ETC
108 ICA No. 342-20 MEPCO VS MUHAMMAD ARIF ISHAQ ETC
109 ICA No. 349-20 MEPCO VS MIAN ABDUL RAUF QURESHI ETC
110 ICA No. 353-20 MEPCO VS MUHAMMAD YOUNAS TAHIR ETC
111 ICA No. 354-20 MEPCO VS ABDUL MAJEED AYYAZ ETC
112 ICA No. 341-20 MEPCO VS ZESHAN ASAD ETC
113 ICA No. 344-20 MEPCO VS RASHID ASEEM ETC
114 ICA No. 343-20 MEPCO VS IRFAN NASIR ETC
115 ICA No. 258-20 MEPCO VS ZIA REHMAN AHMAD ET
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