MIAN SAQIB NISAR, J. -- Respondent being consumer of electricity was aggrieved of the disconnection of the supply and issuance of detection bill to him. It was respondent's case that disconnection was ordered without prior notice as envisaged u/S. 24 of the Electricity Act, 1910. In defence, the respondents particularly present appellant did appear alongwith his counsel, took up the plea that the warning endorsed to the respondent in the bill for the month of August, was sufficient compliance of Section 24 and justified the action. This plea of the appellant was not accepted by the learned Single Judge in Chamber, consequently a direction was issued for restoration of the electric supply to the respondent. By allowing the petition, the Court also imposed Rs. 10,000/- as costs upon the appellant. It is only costs part of the order of the learned Single Judge, which has been impugned in this appeal. It May be advantageous to reproduce the following paragraph of the order:- "In view of the clear violation of the statutory provisions, respondent No. 2, is imposed special costs of Rs. 10,000/-. The petitioner states that he is not interested in receiving the special costs and if this amount is recovered, it should be donated to some charitable institution like Shaukat Khanum Memorial Trust Hospital. It is therefore, directed that when this amount is recovered, it shall be donated to Shaukat Khanum Memorial Trust Hospital."
2. Learned counsel for the appellant contends that special costs under Section 35-A, of the CPC, cannot be imposed as penalty, but only as a compensation to the -other side. As in the instant case, respondent has refused to accept the costs, therefore, the order of the learned Single Judge in Chamber, that costs be paid to Shaukat Khanum Memorial Trust Hospital, is illegal and beyond the purview of the afore-said section and jurisdiction of the Court; Shaukat Khanum Memorial Trust Hospital was not a party to the litigation and therefore, costs cannot be awarded to a stranger.
3. We have heard learned- counsel for the appellant. Although, the provisions of Civil Procedure Code are applicable to the writ jurisdiction, yet under Article 199 of the Constitution, which is an extra-ordinary Constitutional jurisdiction, the Court had ample power to do justice and to prevent the misuse or abuse of authority by the public functionary. Section 35-A, CPC in no way limits the Constitutional jurisdiction of the Court and in appropriate cases, this Court can impose costs under Article 199, notwithstanding the parameter of Section 35-A. In the Instant case, as disconnection of the electricity by the appellant on the order of the latter, was declared to be without lawful authority and it was found that the appellant has failed to comply with the mandatory provisions of Section 24, thus due to such act of the appellant, the respondent had been unnecessarily dragged into litigation, this was a clear encroachment upon the rights of a citizen, which was without any basis and jurisdiction.
4. The other submission that the costs should not be awarded as penalty but only as a compensation, suffice it to say that in the instant case, the order of the learned Single Judge, reproduced above clearly indicates that costs imposed upon the appellant were in the shape of compensation. However, it is the respondent, who voluntarily , stated that he is not interested to recover the costs and he in fact suggested to the Court to donate the amount of costs recovered from the appellant to Shaukat Khanum Memorial Trust Hospital, therefore, the Court on instance of the respondent, passed the order for the costs to be paid to the Hospital, meaning thereby, that in fact, it is the respondent to whom costs were awarded, but he showed the generosity of giving this money to the Hospital, consequently, the argument of learned counsel for the appellant that the learned Single Judge has transgressed his authority, in awarding the costs to the Hospital, or that the Hospital was not a party to the litigation, therefore, could not be awarded the costs, is not well- founded.
CH. IJAZ AHMAD, J. -- I have had the benefit of reading the order proposed to be delivered by my learned brother Mian Saqib Nisar, J. With which I generally concur. Due to importance of the question raised I would like to and following separate note:- High Court has ample jurisdiction to impose costs upon any party who approached the Courts with ulterior motives or conceal material' facts or pubic functionaries who passed the orders against the citizens in violation of the procedure prescribed under the law. It is paramount duty and obligation of the public functionaries to act in accordance with law as is envisaged by Article 4 of the Constitution. This proposition of law was considered by the Honourable Supreme Court in Khurshid Ahmed Naz Faridi v. Bashir Ahmed (1993 SCM R 639) and laid down the following principle:- "The object of granting such costs may be two-fold. One to compensate the aggrieved party who in successful assertion/defence of his right, has been put to unnecessary litigation and harassm ent. The other object is to penalise a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with high-handedness, arbitrarily, male fide or ulterior motive. Where a person acting in his official capacity in complete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court awards cost to be paid by him personally, it will be proper exercise of discretion. But such discretion is based on facts and circumstances of the case and conduct of parties. As the ing costs is discretionary , it should not be fanciful, arbitrary, whimsical or capricious. Such discretion is exercised with regard to the party that will be charged with costs, the amount and the manner in which costs are to be paid."
The Indian Supreme Court also considered the afore-said proposition of law in Arwinder Singh Baga Vs. State of U.P. And others (AIR 1995 SC 117) and laid down the following principle:- "We cannot but express our strong displeasure and disapproval of concerned police officers. The State of Uttar Pardesh will take immediate steps to launch prosecution against all the police officers involved in this sordid affair. The State shall pay a compensation of Rs. 10,000/- to Nidhi, Rs.
10,000/- to Charanjit Singh Bagga and Rs. 5,000/- to each of other persons who were illegally detained and humiliated for no fault of their. Upon such payment it will be open to the State to recover personally the amount of compensation from the concerned police officers."
The afore-said proposition is also supported by the following judgments:-
(i) AIR 1983 S.C. 1986 (Rudul Shah Vs. State of Bihar)
(ii) AIR 1986 S.C. 494 (Bhim Singh Mila Vs. State of Jammu and Kashmir)
(i.e) AIR 1987 S.C. 1086 (M.C. Mehta Vs. Union of India).
2. Let a copy of the order be sent to Shaukat Khanum Memorial Trust Hospital for information.