' SHAHID ANWAR BAJWA, J.- For reasons to be recorded later, this Constitution Petition was dismissed vide short order announced in open Court on 22-7-2010.
2. Facts as narrated in the petition are that the petitioner is tenant of a property and entered into tenancy agreement with one Muhammad Maroof Khan. In the demised premises he had Shuttle Looms. Electricity connection was provided by KESC. On request of the petitioner connection was restored by KESC on 16-12-2009. Thereafter petitioner filed an application to KESC requesting them to inform him of any dues outstanding in respect of electric meter at the demised premises. The petitioner received bill for Rs.67,900 which it is stated was duly paid. It is further stated that since January, 2010 the petitioner has been regularly paying his bills. In the month of March, 2010 petitioner informed KESC that he wanted to install three more machines at the premises. In the month of April, 2010 KESC removed the meter and installed another meter with the allegation that the old meter was sticky and issued a bill for an amount of Rs.2,79,100 for the period from May, 2009 to June, 2010. Consequently it was prayed in the petition as under:- "(a) To give directions to the respondent to not disconnect electricity connection till the final disposal of the main petition.
(b) To strike off the bogus claim bill amounting to Rs.2,79,I0O (Rupees Two Lac Seventy Nine Thousand One Hundred) which intentionally, mala fidely, unlawfully, unauthorized sent to petitioner for payment.
(c) To direct the KESC authority to send current bill only and not include exaggerated bill.
(d) Any other relief(s) which this Hon'ble Court deems fit and proper in the circumstances of the case, be also awarded to the plaintiff."
3. Learned counsel was confronted with the position that KESC is a privatized organization and is, therefore, not amenable to the jurisdiction of this Court under Article 199 of the Constitution.
Learned counsel submitted that in some other case interim relief has been granted though petitions are still pending. Learned counsel was asked to point out any particular petition which has been allowed by any Division Bench against the KESC. The learned counsel was unable to do so.
4. As far as corporate entities including the companies incorporated under the Companies Ordinance, 1984 are concerned, a clear test has been laid down by the Hon'ble Supreme Court in Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC
244. The relevant observations are as under:- "Now, what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province". It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police function of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, special welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State i.e. By the Federal Government or a Provincial Government.
However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities.
' Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province.
' See Deputy Managing Director, National Bank of Pakistan v. Ataul Haq (1), Wali Muhammad v.
General Manager, WAPDA, Lahore (2), Chairman, East Pakistan, Industrial Development Corporation v. Rustam Ali (3), Muhammad Ashraf Pervaiz v. Agricultural Development Bank of Pakistan (4), Abdur Razaq v. WAPDA (5) and R.T. H. Janjua v. National Shipping Corporation (6).
' However, private organization or persons, as distinguished from Government or semi-Government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State. Accordingly, a joint-stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its shareholders, cannot be regarded as a person performing State functions, just for the reason that its functioning is regulated by law or that the distribution of its manufactured products is subject to Governmental control in the public interest. The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions if the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not." (Underlining supplied).
5. This judgment has been consistently been followed by the Hon'ble Supreme Court and one of the latest pronouncement in this regard is Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others, PLD 2006 SC 602. Reference in this regard may also be made to the following other judgments:--
1. Khalid Mehmood v. Habib Bank Ltd. 2005 M LD 1798.
2. Professor M. Wali Khan v. Hamdard University and others 2006 SCM R 593.
3. Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 Lah.
68.
4. Messrs Huffaz Seamless Pipe Industries Ltd., v. Sui Northern Gas Pipelines Ltd., and others, 1998 CLC 1890.
' Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad, PLD 2002 SC 1079.
6. Muhammad Azam Ishtiaq v. Managing Director, Sui Northern Gas Pipelines Ltd., 21 Kashmir Road, Lahore and 2 others (sic).
7. Ejaz Ahmed v. Tourism Development Corporation of Punjab and others 1999 CLC 1532.
8. Nasiruddin Ghori v. Federation of Pakistan C.P. No.D-827/2007.
9. S.M. Gharib Nawaz Daccawala v. KESC and others, Civil Petition No.106-K of 2007.
Therefore, there seems to be an absolute unanimity that in case of an incorporated company, if the Federal Government or Provincial Government does A not have controlling share or interest writ petition for seeking a direction to such a company cannot be maintained.
6. There is another aspect of the matter. It is claimed that the bill issued by KESC is a bogus bill. Now it would be a question of fact which can only be determined by a Court of plenary jurisdiction after recording evidence. Such exercise cannot be undertaken in constitutional jurisdiction.
7. There is yet another aspect of the matter. Adequate alternate remedy is B available to the petitioner before the Electricity Inspector as well as before a Civil Court of competent jurisdiction.
8. Consequently, this writ petition is misconceived and is dismissed as not maintainable. Petitions shall however, be at liberty to invoke such remedy as may be available to him as in accordance with the law.