This revision application is directed against the judgment of a learned Additional District Judge, Karachi, delivered on 5th September 1977, where--by he dismissed the appeal of the applicant and upheld the order of the learned Civil Judge, Karachi, rejecting the plaint of the applicant on the ground that the suit was not maintainable for want of notice under Article 131 of the Karachi Development Authority Order, 1957, hereinafter referred to as the said Order.
2. The relevant facts, for the purposes of this revision application, are that the applicant is the owner of Plot No. D/1, situated in K. D. A. Improvement Scheme No. 7. This plot is within the area leased out by the Government and the K. D. A. To respondent No. 1, Al-Hilal Co-operative Housing Society. The applicant has raised a residential house on the said plot and is living therein. It appears that on the request of respondent No. 1, respondent No. 2, The Karachi Electric Supply Corporation, started to build a sub-station on an open area adjacent to the residential house of the applicant. Since the applicant claims that this sub-station not only was blocking the entrance to his house but also posed a potential danger to his house and to the inmates thereof in case of mat-functioning of the Station, and further the sub-station was being constructed on land which had been shown in the Master Plan as a lane or a street, he filed a suit against the respondents seeking a declatatory injunction against them. The respondent filed their written statements in which a number of pleas were raised. Both respondents Nos. 1 and 3 raised the specific plea that the suit was barred by Article 131 of the said Order. After the issues were framed, an applica-- petition was submitted by the respondent No. 2 under Order VII, rule l1, C. P. C. For the rejection of the plaint on the ground of want of notice under Article 131 of the said Order. This application was allowed by the learned Civil Judge, who held that such notice was necessary and further it had admittedly not been given. The appellant preferred an appeal against the aforesaid decision and decree but the appeal was unsuccessful, hence this revision application.
3. I have heard Mr. A. K. Lakhani, the learned counsel for the appellant, and also Mr. Abdul Sattar, Advocate, who appeared for respondent No. 1 and Mr. Mirza Yaqoob Baig, who represented respondent No. 3. Respondent No. 2 did not put in any appearance.
4. The main submission of Mr. A. K. Lakhani was that no notice was required to be served in the instant case under the said Order as the appellant's grievance was mainly against the action taken and proposed to be taken by respondent No. 2 and not by respondent No. 3. On the other hand, both Mr. Abdul Sattar and Mr. Mirza Yaqoob submitted that the action in the instant case was being taken by respondent No. 2 on the basis of a No-Objection Certificate issued by respondent No. 3 and consequently notice as contemplated by Article 131 of the said Order was essential before the suit could be filed by the applicant.
5. Since the real issue in the instant case is the application of Article 131 of the said Order, it would be advantageous to reproduce clause (1) of the same. It reads as follows :---- ---131. Notice of suit against Authority, etc.--(1) No suit shall be instituted against the Authority or any member or any person associated with the Authority or against any servant of the Authority or against any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any act purporting to be done under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office or the place of abode of such member, Officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, a--d the nature of the relief sought."
6. Mr. A. K. Lakhani submitted that notice under the aforesaid Article was necessary only where the suit was instituted in respect of any act purporting to be done under the said Order. According to the learned counsel, the construction of an electric sub-station was no part of the functions of the K. D. A. Under the said Order. The learned counsel referred to Article 11 of the Order which empowers the K. D. A. To prepare schemes for the development and improvement of areas within Karachi and submitted that it nowhere provides for construction of electric sub-Stations or providing of electricity by the K. D. A. In its Schemes. Mr. Mirza Yaqoob, the learned counsel for respondent No. 3, submitted that Article 11 merely refers to the preparation of schemes by the K. D. A, but does not deal with the powers of the K. D. A. While executing schemes. He submitted that matters relating to schemes are dealt with in Chapter IVofthe said Order and Article 29 thereof specifies the matters for which the K. D. A. Can make provision while preparing schemes. He relied upon clause (m) of the said Article which provides that an improvement scheme may provide inter alia for "the levelling, paving, metalling, flagging, channelling, sewering, and draining of the streets so constructed or altered, and the provision therein for lighting and sanitary facilities". The learned counsel argued that since lighting of streets was one of the matters for which the K. D. A. Was authorised to make a provision in a scheme, all matters connected with such lighting fell within the purview of the K. D. A. And it was competent to execute works relating thereto, either directly or through agencies. The provision for lighting would, in my opinion, includes all necessary facilities which would make lighting possible, that is the various factors involved in the transmission of electricity if not its generation. Transmission of electricity, among other matters, involves laying of underground cables, or overhead wires with pylons or poles for supporting the wires, installation of transformers and sub-stations keeping in view the electricity needs of the area concerned, etc. The construction of electric sub--stations is thus an essential requirement connected with supply and use of electricity.
7. Apart from clause (m) of Article 29, there is a general power available to the K. D. A. For providing for any matter in a scheme which it considers to be appropriate for the area concerned. Clause (v) of the said Article confers powers on the K. D. A. To make provision for "any other matter for which, in the opinion of the Authority, it is expedient to make provision with a view to the improvement of any area comprised in the scheme or of any adjoining area for the general efficiency of the scheme".
8. It cannot be doubted that in the present age and in a crowded city like Karachi, making provision for electricity is a matter which may be considered to be one of necessity. At any rate, it is one of the matters which has to be provided if improvement is desired of any area. I am accordingly of opinion that making of provision for supply of electricity, which would of necessity include the construction of a sub-station, is a matter which can be provided for in a scheme by the K. D. A. As such, the raising of the construction of the sub-station by the K. D. A. Or at its instance would be a matter falling within the powers of the K. D. A. Under the said Order. The fact that the K. D. A. Itself is not constructing the sub-station but it is being constructed by respondent No. 2 makes no difference. Article 131 not only bars a suit against the Authority, without giving of the requisite notice, where an act is purported to be done by the Authority, but also where the act is done under the direction or authority of the K. D. A. In the instant case, the sub-station is being constructed on the basis of a No-Objection Certificate given by the K. D. A. This certificate can be considered to be the authority given by respondent No. 3 to respondent No. 2 to construct the sub-station. In the circumstance, I am of opinion that the suit was barred by reason of want of notice under Article 131 of the said Order.
9. During the course of his arguments, Mr. A. K. Lakhani stated that he was not pressing the appeal against respondent No. 3 and the appeal against the said respondent may be considered to be withdrawn. In my opinion, this would make no material difference for the reason that respondent No. 2 was acting on the strength of the No-Objection Certificate issued by respondent No. 3 and the suit against it would also be barred by Article 131 of the said Order.
10. In the circumstances, I find no merit in this revision application which is dismissed with costs.