MOHAMMAD IBRAHIM KHAN, J.---Ameer Jan and 17 others Petitioners herein, are imploring the constitutional jurisdiction of this Court setting their prayer as follows:- "It is, therefore, humbly prayed that (on) acceptance of this writ petition, the Respondents may please be graciously directed to install electric poles and lay transmission line In village common land instead of thickly populated area or across the river in barren area; they may also be graciously refrain from carrying out any sort of work in our properties without acquisition process and compensation according to the market value as per law.
Any other relief which this august Court deems fit and appropriate may also be graciously granted.
2. Brief but necessary facts as deciphered from the record are that Petitioners claimed to be owners in possession of properties bearing Khasra Nos, 1026, 1028, 1031, 1193, 1215, 1216, 1234, 1237 and 1251 situated within the local limits of Satal Ghari Tehsil Behrain District Swat. The Sarhad Hydal Development Organization (SHYDO) "the Employer" had executed a contrast with SINOTEC-SHPE- GRS "the Contractor" on 11.04.2012, wherein the latter was bound to carry-out certain assigned works i,e, designing, manufacturing, testing, delivering, installing, procurement and construction of Daral Khwar Hydro Power Project. Thereafter, the Provincial Government acquired the land through PHYDO Department by way of mutation Nos, 1484 and 312 dated 30.05.2012 for the construction of power house, access road and site for water storage. The compensation in lieu of acquired land has been distributed amongst land affectees.
3. In the meanwhile, the Respondents Nos,1 to 5 have stated installation of electric poles and they are lying transmission lines from Power House Daral Khwar Hydro Power Project to Grid Station Madyan. The said Power House would generate power of 36 Megawatt. Likewise the power house currently under construction at Matiltan would generate electricity up to 84 Megawatt and power/energy of both these power houses would run through the proposed transmission lines. With adding information that each electric pole would be installed over an area of 60 x 60 sqt. i,e, 13.2 marlas. However, the Provincial Government has neither acquired the properties of the Petitioners nor any compensation has been paid to them. In the meanwhile, the Respondents Nos,1 to '8 have diverted the transmission line due to political pressure at some places and instead of following straight route they are installing the transmission lines in zigzag path. Besides the Respondents have malafidely left out the village common land ("Shamilat") and are carrying-out installation of transmission line in the properties of the Petitioners. The Petitioners have also raised concern that the Respondents instead of installing transmission lines across the river, which is obviously less populated area, rather carry-out the said work in the built up area without advancing any plausible reason in this regard. In this behalf, the Petitioners have moved several applications to the concerned quarter i,e, Respondent No, 2 for redressal of their grievances, but of no avail, hence, the present writ petition has been preferred inter-alia on the grounds mentioned from (a) to (e).
4. Comments were called from the Respondents Nos,1 and 2, who submitted accordingly, wherein it has been mentioned that the design, procurement and construction of Daral Khwar Hydropower Project (HPP) has been undertaken by the Government of Pakhtunkhwa Energy Development Organization (PEDO)/Energy and Power Department Government of Khyber Pakhtunkhwa. A consortium comprising International and National Contractors has been selected for the construction of the project. With adding information that Daral Khwar HPP is a project of National interest which is in the final stage of its completion. This project will not only be a great source of energy to the National Grid but it will also generate revenue for the local community in shape of 10% Royalty. It has been further enumerated therein that the Government of Khyber Pakhtunkhwa through PEDO/E&P Department has acquired the land with the help of Local Administration as per spirit of the Land Acquisition Act. According to law, no permanent Land Acquisition is required for transmission of lines as very sma ll pieces of lands are required for this purpose, however compensation for standing crops and trees, if any, in the land at the foundations of towers is paid and for this purpose with the coordination of Local Administration at Behrain the project management PEDO and Project consultants have submitted assessment compensation report to the tune of Rs,33,00,000/-. The Respondents further submitted that in the interest of the locals and to minimize the effects on the local area, the transmission line from Gorkin-Matiltan HPP Will be terminated in Daral Khwar HPP Power House at Behrain and both the projects will be carried through single transmission line from Behrain to Madyan Grid Station.
5. Having heard arguments of learned counsel for the parties, available record with their valuable assistance gone through.
6. Learned counsel for the Petitioners relied on (2007 M LD 1998) "Kadir Baksh v. Chairman WAPDA and others", PLD 1994 Supreme Court 639 "Mst. Shehla Zia and others v. WAPDA, besides also submitted written arguments for assistance of the Court and prayed for the acceptance of the present writ petition as valuable rights of his clients i,e, Petitioners are at stake by way of compensation of their lands. Inversely learned counsel for the Respondents referred to (PLD 1991 Supreme Court 715) "Malik Haji Nazar Muhammad and another v. WAPDA and another', (PLD 2002 Lahore 28), "Hakim Ali v. Member Power WAPDA and others" (PLD 1993 Lahore 237) "Pakistan Water and Power Development Authority v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society and others", (PLD 1992 Peshawar 76) Umer Gul v. Malik Abdul Manan" and (2013 SCM R 1752) Contempt of Court proceedings against Chief Secretary Sindh and others" and prayed for utter dismissal of the petition being shorn of merits.
7. The learned counsel for the Petitioners has shared his valuable knowledge in view of the dictums highlighted earlier. Under the grounds taken in the memo. of his Petition having been moved an application before the Respondent No,13 on 29.9.2016 to the effect that the Petitioners are owners of the survey numbers mentioned therein. They have prayed for non-installation of the electric poles in their owned and possessed lands instead a proposal was given to carry-out the installation in the Shamilati land, which was under the scheduled PC-1, in this way the Petitioner will not suffer extensive damage in respect of their owned and possessed properties. If otherwise their prayer is not accorded then as an alternate remedy they are entitled to compensation in shape of award of acquisition of their lands under the Land Acquisition Act through Local Administration and in this behalf the Assistant Commissioner Behrain shall hold a thorough inquiry.
8. The petition under narration of facts at Serials 8 and 9 has paramount importance, it seems otherwise while the Respondents have carried-out their 95% work of installation of towers for the purpose of supply then the given prayer of the Petitioners with regard to restraining the Respondents from installation of transmission lines will have absolutely no force. The Respondents have spent huge finances in billions but at least in return the Petitioners may be compensated in terms of a prayer for award for the market value of their lands if at all such lands are directly affected from installation of the towers that is why great emphasis has been made on facts at Serials 8 and 9 the Petition. Para No, 8 speaks of "that the Respondents are about to install electric poles on the valuable properties of the Petitioners without being acquired or compensated the land affectees." Likely Para No, 9 reveals "that the Respondents may graciously be restrained from carrying out illegal and unlawful work without acquisition and compensation on the following grounds.
9. As far as the earlier prayer for consideration upraising of towers in the Shamilati lands or across the river, it is manifestly clear that this period within structure is over as there are only few poles/towers which are to be hoisted so to carry out the entire work for smooth supply and running of power in lines. While dealing with the prayer for compensation it is valid for this purpose in accordance with the comments furnished an amount of Rs, 33,00,000/- has already been reserved and even under the finance program further amount can be arranged if the acquisition process is carried-out and values of the properties that are to be affected the award is determined. The Pukhtunkhwa (Energy) Development Organization Act, 1993 cast upon this organization to have process and obligations of licensee under Electricity Act, 1910 as per section 14 of the ibid Act;- "Organization to have powers and obligations of licensee under Electricity Act, 1910.- - - The organization shall, for the purposes of the, Electricity Act, 1910, be deemed to be a licensee and shall have the powers and discharge all the obligations of a licensee under the said Act; Provided that nothing in sections 3 to 11, subsections (2) and (3) of section 21 and sections 22, 23 and 27 of the said Act, or in clauses I to XII of the Schedule to the said Act, relating to the duties and obligations of a licensee shall apply to the Organization."
Section 15 pertains to Powers regarding certain matters. Its subsection (2) clause (b) empowers the organization;- a. .... b. Acquire by purchase, lease, exchange or otherwise and dispose of by sale, lease, exchange or otherwise, [any immovable property or any interest in such property]; The attached subsection (3) provides mode and manners Under Land Acquisition Act, 1894 it says,- "The acquisition of any land or any interest in land for the Organization under this section, or of any scheme under this Act, shall be deemed to 'be an acquisition for a public purpose within the meaning of the Land Acquisition Act, 1894, and the provisions of the said Act shall apply to all such proceedings." This Act of the year i,e, The Pakhtunkhwa [Energy] Development Organization Act, 1993 highlights section 16 subsection 2(b) as,- "Right of entry.
Provided that when the affected land does not vest in the Organization the power conferred by this subsection shall be exercised in such manner as to cause least damage to the rights of the owner thereof."
10. In order to initiate the process for determination of the price of lands coming under the elevation of towers owned by the affectees/Petitioners there may be an earlier acquisition process for a' definite award strictly in terms of the market rate. It is pertinent to mention here that the Interim Relief granting order handed down by this Court on 16.01.2017 is hereby recalled.
11. In such setting of the terms, this writ petition is disposed of accordingly.