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- 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.
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 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 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.
"(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 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 encroachment filed C.P. No. D- 2557 of 2013, purportedly sought an injunction against the Law Enforcement Agencies against alleged harassm ent. That petition was initially disposed by order dated 15-08-2014 (copy available at page 145 of the Court file) on the assurance of learned Standing Counsel that the said order. was then abused to prevent the implementation of the injunction orders passed by learned single judge in Suit No. 305 of 2013. The said petition was also filed without impleading PTCL as a party.
PTCL/intervenor filed an Application under section 12(2), C.P.C. and this Court vide Order dated 5- 10-2015 (copy thereof is available page 147 of the Court file) and 01-02-2016 (copy available at page151 of the Court file) was pleased to clarify the orders passed in the aforesaid petition.
21. Learned counsel for the applicant/intervenor further submitted that another C.P. No. D-8832 of 2017 was filed against the harassm ent by the Rasool Bux again without impleading PTCL as a party.
PTCL filed an Application under Order 1, Rule 10, C.P.C. (available at page 157 of the Court file) and this Court vide Order dated 19-09-2019 (available at page 187 of the Court file) was pleased to dismiss the said Petition being not maintainable.
22. Per learned counsel for the intervenor/PTCL, the sole purpose of filing of the present Petition is to legitimize the encroachment made by the members of the petitioner No.1 and petitioner No.2 on PTCL's property/land and to protect the unlawful actions taken against the PTCL's property and to protect the public officials who have aided and assisted the Petitioners in the land grabbing attempts of the Petitioners. Per learned counsel in case any relief is granted in this petition, the same will be abused to further encroachment upon the land of PTCL/ intervenor.
23. Heard Mr. Asim Iqbal counsel for the petitioners, Mr. Ayan Mustafa Memon counsel for the respondent No.2/K-Electric and Ijaz Ahmed Zahid counsel for the applicant/intervenor/PTCL and perused the material available on record.
24. It reveals from the available record that land of Murtaza Town situated near Malir Halt, Malir, Karachi was never allotted to the residents of that area specially the petitioner through due process of law and even the approved plan and layout plan of different units/houses in such land for construction raised thereon have not been issued or sanctioned by the competent authorities.
On an enquiry conducted by Mr. Nazar Muhammad Leghari, Legal Advisor on Revenue Issues, Board of Revenue Sindh in respect of the land subject matter of this petition on 29.03.2019 an order was passed by the Senior Member, Board of Revenue Sindh whereby Mr. Gada Hussain Abro, the then Mukhtiarkar Sub-Division Airport, District Karachi who was involved in allotment of subject land to the petitioners was dismissed from his service. During the enquiry against Mr. Gada Hussain Abro, it was surfaced that he was involved in illegal encroachment and tampering of the record on some pieces of PTCL land' Deh Safooran. It was further observed in the enquiry that the above-named Mukhtiarkar with the assistance of Anti-Encroachment Force and Local Police demolished structure of PTCL boundaries etc ion S. Nos. 243 to 246 carried out from Survey No.153 without lawful authority.
In respect of the subject land where electricity connections have been sought by the petitioners a Civil Suit No.305/2013 was filed by the Pakistan Telecommunication Company Limited (PTCL) against the Rasool Bux and Murtaza Abro that is pending before this Court and restraining orders are still operating in that suit with regard to the land owned by the PTCL since 1950.
25. It is also found from the available record that the Deputy Commissioner, District Malir appeared in Suit No.305/2013 in this Court and made a statement whereby he confirmed that defendants in that suit are encroachers and have no title of the subject land of Murtaza Town in their favour.
Petitioners as such have come to this with unclean hands. In the case reported in PLD 1992 Karachi 54 (DB) [Muntizma Committee. AL-Mustfa Colony (REGV.), Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others] it has been held that: -- "This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan praying for a direction to the respondents, their agents and representatives not to disturb the petitioners of their peaceful use of the plot measuring about 3-1/2 acres situated in Goth Abbas Town, towards main Abul Hassan Ispahani Road, Sector 12, Scheme No.33, Deh Gujro, District Karachi East which is in use as Eidgah, Clinic, Society office and playground as the respondent No.7 is illegally and unlawfully trying and attempting to usurp it with the assistance and in collusion with the other respondents and also for direction to the agents and representatives of the respondents not to trespass. demolish the structure thereon and dispossess the petitioners, from the aforesaid amenity plot in any manner and for further direction to respondents Nos. 1 to 6 and 8 to expedite the grant of lease of the said Abbas Town including the said plot accordingly for the use and occupation of the residents of Abbas Town.
The petitioner No.1 is described as Residents Society (Registered) Abbas Town. The petitioners Nos.2, 3 and 4 are residents of Abbas Town, Karachi. Whereas the petitioner No. 5 is Secretary, Masjid-e-Usmania. The certificate of Registration annexed to the petition is Annexure. "A". A perusal of it shows that Bakhar Goth Residents Society Karachi was registered under the Societies Act XXI of 1860 being Registration No.6360 of 1979-80."
(Page 57 of the report)
"The points for consideration are as follows: --
(1) Whether an association of persons, registered or unregistered, can maintain a petition under Article 199 of the Constitution for the enforcement of the members as distinguished from the enforcement of its rights?
(2) Whether a single petition under Article 199 of the Constitution is maintainable on behalf of more than one petitioner, not connected with each other as partners or those who have no other legally subsisting jural relationship, whether the questions of law and fact, involved in the petition, are common?
We shall deal with the above questions seriatim. The petitioners No..1 are registered under the Societies Registration Act. Petitioners Nos. 2, 3 and 4 are residents of Abbas Town, Karachi. Article 199 of the Constitution confers very wide powers on a High Court for enforcement of rights. Article 199 provides for remedy for the infringement of a fundamental or legal right of a person. The condition precedent to the granting of any relief under Article 199 depends on existence of a fundamental or legal right of a person and the infringement of right. The right which is the foundation of an application under Article 199 is a personal and individual right, The legal right may be a statutory right or u right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duly to perform relating to that right."
(Page 58-59 of the report)
In the instant case. the persons who will be affected by the allotment. of the land comprised in 3- 1/2 acres are the residents occupying the same or inhabitants of Abbas Town. Secondly 3-1/2 acres land was not reserved for playground, Eidgah, hospital, maternity home and school for the residents of the Town but surely not the petitioner No. 1. The petitioner No. 1 has no legal right and therefore there is no question of the infringement of a legal right. The petitioner No.1 has no interest in 3-1/2 acres land and is not, therefore, an aggrieved person.
Apart from what has been stated above, the petitioner No. 1 has another difficulty in regard to its locus standi. It has already been noticed that the petitioner No..1 is a registered society under the Societies Registration Act of 1860. Under section 6 of this Act every society registered may sue or may be sued in name of the President, Chairman or principal Secretary, of trustees, as shall be determined by the rules or regulations of the society or any office bearer authorized by the governing body in this behalf. In view of section 9, the society itself has no locus standi to maintain an action and consequently a constitutional petition. The constitutional petition was filed by the petitioner No.1 as the petitioner and not by the president, secretary or any office-bearer authorized by the governing body of the petitioner No.1.
On this ground also, the constitutional petition is not maintainable."
(emphasis added)
(Placitum A-B page 59-60 of the report)
26. In another case reported in 2002 PLC 614 [Democratic Workers' Union C.B.A. v. State Bank of Pakistan and others], it was observed that: - "From perusal of the aforecited cases, we find that the same do not substantiate the arguments advanced by Mr. Abdul Mujeeb Pirzada as we have not been able to find any observation that Article 199 of the Constitution could-be invoked by a person in a representative capacity, for redress of a grievance of a third person. The petitioner being the Collective Bargaining Agent could not claim locus standi to invoke the jurisdiction of this Court under Article 199 of the Constitution for the alleged violation of the legal or fundamental rights of its members."
(emphasis added)
(Placitum A, page 622 of the report).
27. In another case reported in 2010 PLC 306 (SHC-DB) [Messrs Mutual Funds Association of Pakistan (MUFAP) v. Federation of Pakistan and another], it was observed that: - "9. The petitioner as stated in Para 1 of the petition is licensed as a Trade Organization and renders assistance and provide common services and facilities to the persons engaged in the field of mutual funds etc. In the petition the petitioner has proved not only for relief regarding himself but has also sought relief in respect of Mutual Funds, Pension Funds, Collective Investment Schemes and Investment Companies. Learned counsel for the petitioner relied upon Item 16 of Memorandum of Association to contend that if a member is aggrieved the petitioner is also aggrieved. Said Item 16 is in the following words: -- "To promote, support or oppose any legislative or other measures affecting the mutual fund industry or the interests of the members of the association and the investors."
(Para 9, page 313 of the report)
"14. Apart- from the above, there is another reason that the petitioner cannot be held to be entitled to maintain a petition in respect of its members. Whatever is the decision passed in this petition, how can it be held, and binding upon, against persons who are not party to this petition.
Suppose tomorrow a member of this association comes with a similar petition and when he is shown decision of this petition what is there to stop him from saying that he was not a party in this petition and therefore how could order made in this petition be valid against such a member.
In order to constitute res judicata it is essential that order be made between the same parties.
Mere fact that one of the objects as contained in the Memorandum of Association of the petitioner is promoting etc., interest of its members is not sufficient to put the petitioner in the shoes of its members and hold him entitled to maintain petition in respect of a cause which could conceivably cause grievance to its members. Therefore, we hold that petitioner is not an aggrieved person in respect of applicability of the amendment introduced in the Workers' Welfare Fund Ordinance, 1971 by Finance Act, 2008 to its members' and therefore, is not entitled to maintain this petition in respect of grievance, if any and whatsoever they may be, of any of its members."
(emphasis added)
(Para 14, page 315 of the report)
28. In another case reported in PLD 1964. Lahore 138 [Pakistan Steel Re-Rolling Mills. Association v. Province of West Pakistan], it was observed that: -- "2. In resisting the petition, some preliminary objections have been raised by the respondent, but the one which was strenuously argued before us by the learned Advocate-General on behalf of the respondent needs to be considered. The objection is that the petition as laid by the Pakistan Steel Re-rolling Mills Association is not competent qua the relief sought in the petition, as the petitioner cannot be said to be an "aggrieved party", as envisaged in Article 98 of the Constitution. It is contended that the petitioner association, as such, is not affected by the ultimate result ensuing from the impugned notification, laying down minimum rates of wages for workers in the Steel, Re-rolling industries, although its members, i.e., the mills who firm this association may be so affected."
(emphasis added)
(Para 2, page 139-140 of the report)
8. No authority was cited before us by the learned counsel for the petitioners contending for the opposite view, but it was argued by them that the petitioner-association was a party aggrieved within the meaning of Article 98 of the Constitution for various reasons. It was said that the association is an "aggrieved party" because it enjoys a consultative status for operating the Ordinance, and that the grievance made in the petition is that in the process of setting up of the Minimum Wages Board and the recommendations made by the Board, there has been a departure from the provisions of the Ordinance. An added strength was given to this contention by the fact that there was no other association representing the Steel Mills Owners and that the petitioner-association was a registered body under the Trade Organizations Ordinance of 1961. We consider that none of these considerations confers on the association the character of an "aggrieved party" within the meaning of Article 98 of the Constitution, as the grievance complained of must in its effect entail a direct injury to the petitioner to make it an aggrieved party, and the injury has to be co-related to the relief sought in the petition to avoid that injury. In writ jurisdiction, reliefs claimed have to be construed and granted in terms of the prayers made in the petition See Pakistan v. Ali Afzal (PLD 1960 SC I) and the Courts are not called upon merely to decide metaphysical questions of law without reference to the relief which is sought in the petition. In the present case, the petition under Article 98, according to the subject heading, is directed against the respondent for an order to withdraw and cancel and treat 'as of no valid effect the minimum rates of wages recommended by the West Pakistan Minimum Wages Board, as published in West Pakistan Gazette dated the 15th of March 1963 under section 6 (1) of the Ordinance and at the end the same ,prayer is repeated that the Court on being of the opinion that the respondent had acted in excess of its authority conferred on it by law may be pleased to issue an order directing the cancellation of the aforesaid Notification. It is obvious that the notification in question, laying down the minimum wages for the workers in the Schedule appended to it does not at all affect the interests of the petitioner, association as such to make it an "aggrieved party" for the purpose of making a writ petition. The Association does not have to pay the wages to workers and it cannot make a grievance of that fact---that the wages have not been legally fixed.
It is the individual members, i.e., the owners of the different Steel Re-rolling Mills that have to foot the bill of the increased wages, as ordained in the notification, and it is they who are individually in various degrees affected by the notification. In this situation, respectfully agreeing with the view, expressed in the authorities noted above, we are constrained to hold that this petition is not competent, as the petitioner association by itself. apart from its individual members, is not at all direct affectional outcome of the impugned notification. The view that we have formed on this point is sufficient to dispose of the petition on the preliminary objection, dispensing with the need to go into the merits, but since the merits of the petition were also argued before us by the learned counsel and as the question raised might give rise to a number of petitions by the individual members of the association and we understand that one such petition by an individual member has already been filed which is pending for admission, we would like to express our opinion on the merits as well."
(emphasis added)
(Para 8, page 142-143 of the report)
29. As regard to the eligibility of the petitioners to file present petition under Article 199 of the Constitution of Pakistan, 1973, the petitioner No.2 has no valid title to the property subject matter of this petition for which they are seeking electricity connections. Petition is not maintainable on this ground as the petitioners have come to this Court with unclean hands. Petitioner No.1 cannot file present petition in the representative capacity as the plaintiff No.1 is not a co-operative housing society as such having no interest in the land or development of the locality, hence having no legal status. Under Article 199 of the Constitution of Islamic Republic of Pakistan petition in representative capacity' is not maintainable to the extent of petition No. 1. If any authority is needed, the reference may be made to the case reported in 2006 CLD 1370 (LHC - DE) [Erum Jafari v. KASB Bank through Manager and 10 others), it has been observed that: -- "6. There is another aspect of the case, on which the learned Judge Banking Court has mainly relied upon, while dismissing appellant's objection petition. Admittedly, the gift deed was got registered in the office of Sub-Registrar, Sadar, whereas the property is situated at Gulberg and falls within the jurisdiction of Sub-Registrar, Model Town. Section 28 of the Registration Act, inter alia, provides that every document mentioned in section 17 shall be presented for registration in the office of a Sub-Registrar within whose sub-District the whole or some portion of the property to which such document relates is situate. In this case, as noted above, Sub-Registrar, Model Town had the jurisdiction to register the document. The learned Judge Banking Court has rightly relied upon the case of Muhammad Mushtaq and another v. Bashir Ahmed Chaudhry and another PLD 1991 Lahore 400, wherein it has been held, with reference to section 28 of the Registration Act and the Registration Rules, that registration of sale-Deed by Registrar relating to land which was outside his territorial jurisdiction was without jurisdiction and void.
7. In the above perspective, we have examined the impugned order and find that the appellant has comprehensively failed to prove the execution and existence of valid and legal gift deed qua the mortgaged property, which stood mortgaged in favour of the respondent-Bank. The impugned order is legal and does not call for any interference by this Court, thus, the same is maintained."
(emphasis added)
(Para 6 and 7, page 1375 of the report)
30. In another the case reported in 2011 SCMR 279 [Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others], it has been observed that:-- "6. It is worth mentioning that it is mandatory and obligatory for a party invoking the Constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. In the light of alleged forgery and fraud as pointed out by learned Additional Advocate General, we are of the considered view that legal right and entitlement of the petitioners are controversial. It hardly needs any elaboration that disputed question of fact cannot be decided in constitutional jurisdiction. In this regard reference can be made to the following authorities: -- (emphasis added)
(Para 6, page 283 of the report)
31. Learned counsel for the petitioners advanced the arguments to the effect that the applicant/intervenor is only claiming ownership right of 11-27 acres in Survey No.154 whereas Murtaza Town has been constructed on a piece of land measuring 04-15 acres out of Survey No.154, Deh Safooran, Tappo Mehran, Malir, Karachi. Learned counsel for the petitioners urges that total area of Survey No.154, Deh Safooran Tappo Mehran, Karachi is 23-00 acres as per owned statement of the applicant/intervenor/PTCL. Learned counsel for the petitioners further submitted that PTCL never claimed entire 23-00 acres land from Survey No.154 and he has referred to Suit No.305/2013 filed by the applicant/ intervenor/PTCL in this Court and application under Order I, Rule 10, C.P.C. in C.P. No. D-8832/2017. Learned counsel contends that residents of Mutaza Town are the bona fide purchasers of their houses and are residing peacefully but the applicant/PTCL are harassing them and causing destruction to install electricity meter on their respective houses of the Mutaza Town.
32. On perusal of the material on record it is found that the residents of Mutaza Town having no title documents attached with the petition whereas in the counter affidavit to the application/intervenor's application bearing C.M.A. No.8920/2021 few sale deeds were enclosed whereas sale deed of petitioner No.2 is enclosed at page-539, which is void and ab-initio for the following reasons:-
(a) it has been executed during the currency of interim orders passed in Suit No. 305 of 2013 by this Court;
(b) a false affidavit was given by Ghulam Murtaza (who is defendant No. 2 in Suit No. 305 of 2013) to procure the registration of the purported sale deed,
(c) statement made by the Deputy Commissioner, Malir Town, in Suit No. 305 of 2013 on 07-05- 2013, so also statement in writing dated 05.05.2021 had confirmed that the defendants in Suit No. 305 of 2013 filed by the PTCL were encroachers and the said encroachers have conveyed the title to the Petitioner No. 2.
(d) as per revenue records the title of the land of Murtaza Town claimed by the defendants in Suit No. 305 of 2013 was declared fake by the Board of Revenue Enquiry Report and the revenue officials were held responsible for falsifying the records and they were dismissed from service.
(e) the purported sale deed was registered with Sub-Registrar, Gulshan Town, Karachi having no jurisdiction over subject, property as the same falls in the jurisdiction of Sub-Registrar Shah Faisal Town as per Notification dated 30-11-2005 issued by the Inspector General of Registration, Board of Revenue, Sindh.
(f) section 28 of the Registration Act, 1908 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 (2), 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."
33. With regard to the arguments of the learned counsel for the petitioners was that the intervenor was in complete knowledge of the situation that K-Electric/respondent No.2 has already installed the electric poles, wires and PMTs at Murtaza Town, which has .no concern with the PTCL colony and/to PTCL land therefore, the PTCL has neither raised any objection nor filed any case for removal of these installation in Murtaza Town, it is an admitted position that the intervenor/PTCL filed a suit against the K-Electric respondent No.2, that was decreed in terms of the compromise arrived between the PTCL and K-Electric. Per learned counsel, non-supply of electricity to the citizen regularly, is tantamount to deprive them from one of the essentials of the life including the security of economic activities, which are relatable to their fundamental rights protected under Articles 199 and 14 of the Constitution. Such observation find support from the case reported in 2012 SCMR 773.
Reference was also given to the case of Messers Erum Heights Residents Welfare Association v.
KESC (reported as 2001 CLC 321) as well as Mst. Hmara Ahsan v. KESC (reported as PLD 2014 Sindh 344) wherein it was held that Electricity is basic necessity of life. Common citizens cannot be deprived of basic necessity of life, even for one day. Reference was also given to the case of Chief Executive GEPCO and 3 others v. Asghar Ali Rana (reported as 2018 YLR 1391). Learned counsel for the respondent No.2/K-Electric also supported the contention of the learned counsel for the petitioners.
34. Learned counsel for the applicant/intervenor/PTCL in reply to such arguments submitted that the K-Electric is maliciously supporting the petitioners in order to wriggle out of their binding obligations in terms of the consent decree passed in Suit No. 1482 of 2015. Respondent No.2/K- Electric had started giving electricity connections to the illegal occupants who are encroachers in PTCL's staff colonies in Malir therefore, the PTCL/applicant filed Suit 1482 of 2015 against K-Electric and reference of Suit No. 305 of 2013 filed by the PTCL/applicant against the encroachment by the petitioner has also been given by the applicant/PTCL counsel in this petition that had been filed against Rasool Bux and Murtaza the founder of Murtaza Town, that suit is pending in this Court.
35. Suit No.1482/2015 was decreed on 05.04.2018 as result of compromise and the K-Electric was obliged to remove all illegal connections and not to give any new connections without prior written approval of PTCL. As respondent No.2/K-Electric had failed to abide by the obligations, the Execution Application No 28 of 2021 was filed by the applicant/PTCL in this Court wherein an interim order dated 12.10.2020 was passed. It is also surfaced from the record that the respondent No.2/K- Electric attempted to indirectly wriggle out of its obligations under the Consent Decree by filing application bearing C.M.A. No.855/2019 in Suit No.305/2013 to seek modification of injunction order operating in Suit No.305/2013. In paragraph-4 of that application respondent No.2/K-Electric categorically admitted that the alleged Murtaza Town where the subject meters are to be installed is included in the plaint of Suit 305 of 2013. Reference of Suit No.305/2013 was clearly mentioned in para-10 of the plaint in Suit No.1482 of 2015, that has been decreed. Respondent No.2/K-Electric therefore should be estopped to include in the scope of the Consent Decree passed in Suit No. 1482 of 2015. Correspondence in between the applicant/intervenor/ PTCL and respondent No.2/K-Electric regarding providing illegal connections to the petitioner No.2 in the shape of applicant/PTCL letters dated 25.06.2018, 25.10.2019 and 15.10.2020 is available on record whereby the PTCL/applicant informed the respondent No.2/K-Electric to retrain from providing illegal electricity connections to the residents of Murtaza Town.
36. Case law cited by the learned counsel for the petitioners for providing electricity connections to the petitioners are not applicable in the present case as per material available on record; petitioners have no valid title documents in respect of the properties; status of Murtaza Town is under dispute in Suit No.305/2013 and restraining orders were passed against the founder of the Murtaza Town by this Court are still in operation.
37. Cantonment Executive Officer, Cantonment Board Faisal in a letter dated addressed to the General Manager Admin and Security, PTCL intimated that scheme namely "Al-Murtaza Town" situated in Deh Safooran, Airport Town, District Malir, Karachi has been launched without prior approval of layout plan from the Cantonment Board Faisal, where more than 100 houses have been constructed illegally. List of illegally constructed houses is attached with the letter and that letter is enclosed along with affidavit-in-rejoinder filed to the intervenor's application filed by the applicant/intervenor as -annexure "R/1" at page-9 with the plaint.
38. In view of facts and circumstances as well as the case law as discussed above, we are of the humble view that the petitioners have failed to make out the case for Installation of electricity meters at the subject premises/residences of the respective members of the petitioner No.1 and to operate PMT installed at the cost of the petitioners or to supply electricity as the petitioners have come to this Court with unclean hands. Predecessor-in-interest of the petitioners have no valid allotment/title of the subject land so as the petitioners have not produced any layout plan, approved building plan, allotment order, possession order of their respective plots/properties issued by the competent authorities in accordance with law.
39. Application bearing C.M.A. No.8920/2021 filed under Order I, Rule 10 read with section 151, C.P.C. is granted and the applicant/ intervenor/PTCL is impleaded as respondent No.4 in the present petition.
40. For the foregoing reasons, instant petition as well as injunction application, both are hereby dismissed in limine. However, till decision of the title of the subject plots/houses of the members of the petitioner C No:1, the members can only get temporary connections of the electricity being already provided by the respondent No.2/K-Electric. Matter is already subjudiced in. Suit No.305/2013 against the founder of the Murtaza Town in respect of land that has been claimed to have been allotted to the petitioners. In case the petitioners have any such claim they may approach to be impleaded as a party in that suit if so, advised to them.