Ameer Jan & others VS Project Manger GRC & others.

L ( Before The Honourable peshawar High Court, Mingora Bench/Dar-L-ll-Qaza, Swat.

./- il ! j', R iii6; t Writ Petition No(6 -t-of 2017

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1)AmeerJan Son of Qadar Khan i:I 1. !". --."r'i::\i ii' ,r- i

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2)Muhammad Iqbal (3) Muhammad Sadiq \ 0 I.r*":1" ,Ygrzt;:")''

Ikram Khan Sons.of '.

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6)Bakht,Mena 7) Bakht Jeharr Daughters of

8)Maastrpari Widow of Dildar.(Late)

9)Khan llahad.ar Son of Qaiser

10)Nows,henvan son of Mahtab

11)Bakht Munir 12) Ghulam Itasool 13) Ghulam Sarwar

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14)Ghulam Wahid 15) Zahoor Ahmad Son of

16)Khatoon BiBi 17) Rooh Afz;a Daughters of

18)BiBi widow of Faqeer Jan (Late) residents of Satal ,N".gr.

Ghari Tehsil Bahrain District liwat.

Petitioners

Versus

1.Project Manager GRC R/O Panjigram Tehsil Bahrain Districi Swat.

2.Proiect, Director GRC R,/O Paniigram Tehsil Bahrain Districr: Swat,

3.ProiectrManager SINOTEC R/O Paniigram Tehsil Bahrain District Swat.

4.Sher Bahadar sub conrractor R/O Paniigfam Tehsil Bahrain District Swat.

5.Direclor (Finance & Admin), SHYDO/PHYDO, peshawar. ' 6. Direcior (P&F) SHYDO/PFIYDO, Pcslrawar. taLED Tt OIY li

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? JUDGMENTSHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCII (DAR-UL-Q AZA),SWAT

(lutliciol Department\ W.P. No. l6-lW20l7 l:..'

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Date of hearing: 12.06.2017 l:" i Petitioners:- (Ameer Jan & o '/ i oh Salam.Khan, Adtocate,

Resooitdents:- t Manaper GR C & otheril bv Mnlok Ahmad lan, Advocate.

MAD IBNAHIM KIIAN. J.- Ameer Jan & 17 others Petitiorrcrs herein, are imploring the constitutional junsdiction of this Court setting their prayer as follows:-

" It k, therefore, humbly prayed lhat t ort occeplonce of lhis wril petition, lhe Respondenls may please be graciously direcled to ilrsloll electric poles and lay transmission line in villoge common land inslead of lhickly populoted orea or across th:e ver in barren arca; they may olso be graclously ret;aln ftom carrying oul any so ot.'work in our properties wilhoul acquisilion prucess ond compensalion according lo lhe markel volue us per law.

r- Any other relief which lhis augusl Courl deems 1il and appropriate may also be grucioasly granled.

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Brief but necessary facts as e deciphered from the record are that Petitioners claimed to be owners in possession of properties bearing Khasra l.los. I 026, I 028, I 03 l, I I 93,1 2 I 5, 1216,1234,1237, and l25l situated within the local Iimits of Satal Ghari Tehsil Behrain Dishict Swat. The Sarhad Hydal Development Organization (SHYDO) "the Employer" had executed a contrabt 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, designing, 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 & 312 dated 3O.O51Ol2 for the construction of power house, t

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access road and site for water storage. The ti ,/, f, compensatibn in lieu of acquired land has been dishibuted amongst land affectees.

3 In thd meanwhile, the Respondents No. I to 5 have,started installation of electric Nawab /TTTESTED

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poles and they ar,: lying transmission lines from s 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 construlction at Matiltan would generate

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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 No. I to 8 have diverted the transmission line due to political pressure at some places and instead of follorving straight route they are installing the transmission lines in zigzag path.

f, lA - Besides the Respondents have malafidely left out the village common land ("Shamilat") and are carrying-out installation of transmission line ln thg properties of the Petitioners. The

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Petitioners have'also taised concern that the Respordents instead of installing transmission lines across the :iver, which is obviously less pgpulated area, rather carry-out the said work in the built up area without advancing any plausit,le reason in this regard. In this behal{, the Pelitioners have moved several applications to the ooncerned quarter i.c. Respondent No. 2 for rgdressal oftheir grievances, but ofno avail, hence, the pres3nt rvrit petition has been preferrEd inler-alia on the grounds mentioned t from (a) to (e).

4 Comnrents were called from the

ResporrdentsNo. I &2, who submitted accordingly, whelein it has been mentioned that the design, procurement and consffuction of Daral Khwar Hydroporver Project (HPP) has been undertaketr by the Government of ; Pakhtunkhwa Energy Development f, ILP - Organization (PEDO/ Energy & Power Departpent (iovernment of KhYber

Pakhtunkhwa. { consortium cornprising Intemational and National Contractors has been Nr'.rrb ATTES

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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 l0% Royalty. It has been further enumerated therein that the Governrnent of Khyber Pakhtunkhwa through PEDO/E&P Dep4rtment 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 hequired for trhnsmission cf lines as very small 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

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of Local Administration at Behrain the project f, tt")' managiment PEDO and Project consultants have submitted assessment compensation report tb the tune of Rs. 33,00,000/-. The Respondents further submitted that in the n tere st of the

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locals ,and to mirrimize the effects on the local area, the transmisiion Iine from Gorkin-Matiltan HPP will be tenninared in Daral Khwar Hpp Power House at behrain and both the projects t

will be carried through single hansmission line from Behrain to tr4adyan 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 o o PLJ 200 7 Karachi 139 (D'B) " Kadir Baksh vs Chairman WAPDA & olhers", PLD 1994 Suor'eme ('ourt 639 It Shehla Zia and others vs l;l/APDA 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 f p - clients.i.e. Petitioners are at stake by way of compensation of their lands. Inversely learned counsel for the Respondents referred to PU.

l99l Ewreme Courl TlS " Malik Huii Nuzqr Muhommad and onotlru vs IYAPDA and N'rEnr9r Nf,rrrb l-,,,r'." /'ie{, o.,.ro Pe:r1r, ' .'.,,t..i.r., s',',lt' ll rtr ci': ' ' '

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anotlre 'f ". PLD 2002 Lohore 28 " ttoiim tti w Mem bier Power WAPDA ond olhers" PLD 1993 I .altore 237 " Pak,.tlon ll/oter ond Power Develo Dmenl Ar^tthori,tv vs Pakistan Atomic Ene Commissian Emolo vees CooDerative Housitrg Socien and otlters" PLD ]992 Pesh$war 76 Umer Gul vs Malik A bdul Monah" and 2013 SCIl,lR 1752 Conte to Courl roceedin a inst Chie Secretar t s'indh and olh.grs" and prayed for utter dismissal of the prltition being shorn of merits.

7 The learned counsel for the Petitiouers has shired his valuable knowledge in view of the dictums highlighted earlier. Under the grounds takeu in the memo of his Petition having been mor.ed an application before the Resporrdent No. .13 on 29.9.2016 to the effect that the Petitiont,rs are owners of the survey numbers mentioned therein. They have prayed ,") -for non-installaticn of the electric poles in their f, owned,and possessed lands instead, a proposal was given to catry-out the installation in the Sharhilati land, which was under the scheduled

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PC-l, in this way the Petitioners 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 ol'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 p,etition under narration of facts at Serial 8 & t has paramount importance, it seems otherwise while the Respondents have carried-out their 95o/o work of installation of

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towers for tlre purpose of supply then the given prayer of the Petitioners with regard to restrairring the Respondents from installation of transmission lines will have absolutely no force.

The Respondents have spent huge finances in billions but at least in iqturn the Petitioners may ,r)- be compensated in terms of a prayer for award for thei rnarket vaiue of their tands if at all such

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lands are directly affected from installation of the towers that is why great emphasis has been Nsirab ,1T-rH- =iy t- ,4 l. I

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made on facts at Serial 8 & 9 of the Petition. Q' Para No. 8 speak s of "that the Respondents are a b out to install electric oo les on the valuable properties of th e Pelitioners without beins acauired or com nsated the land a ll Likely Para No. 9 reveals " that the Respondents mawpciousb be restrqin

illesal and unla yfuL tloLk without acauisition 9 As f,u 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 rs over as there are only few poles/towers which are to be hoisted so to carry- out the entirg work for smooth supply and running of power in lines. While dealing with the prayer for compensation it is valid for this purpose in t f d- accordance with, the comments furnished an amount of Rs. 33,00,000/- has already been reserved and eveir under the finance program further amount can be arranged if the acquisition process is carried-out and values of Navab ATT !'asTE ,a' iI l,),c ch Pesh; '"' l''lirrti-'r

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the properties that are to be affected the award is detr:rmined. -1lhe Pukhtoonkhwa (Enerry) Development Orp.anization Act 1993 cast upon this organizatioe t to have procetss and

oblightions of lir:ensee under Electricity Act l9l0 a:; per section I4 of the ibid Act;- "Organization to have powers and obligations of licensee under Electricity act, 19f 0.- - - The organization shall, for the purposes of th,: Electricity Act, 1910, be deeme'd to be a licensee and shall have ,rll the powers and discharge all the obligations of a licensee under the said Act;

Provided that nothing in sectio.r 3 to I l, sub-section$ (2) and (3) ofsection 2l and sections 22,23 and 2'l of the said Act, or in clauses f e I to XII of the Schedule to the said Act, relating to the duties and obligations of a licensee shall apply to the Organization."

Sectiorr l5 pertains to Powers regarding certain matters. Its sub section (2) clause (b) empowers the organization;- t AT.pF_e.Ttr-D

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b. Ar:quire by purchase, lease, exchange or othcrwise and dispose of by sale, Iease, exchange or otherwise, lary immovable property or any interest in such properl;

, ft" attached sub section (3) provides mode and manners under Land Acquisition Act, 1894 it says;- "The acquisition of any land or any interest in land for thc Orgariization under this section, or for any scheme under this Act,

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shall' be deemed to be an acquisition for a public purpose within the meaning of the Land Acquisition Act, 1894, and the proviriions of the said Act shall apply to all such proceedings."

T'his act of the year i.e. The Pakhtun khwa [Energ$l Development Organization A,ct, 1993 highlights sec'tion l6 sub section 2(b) as;- t "Righ,t of entry.

t' Provided that when the

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affected land does not vest in the Organization the Power conferred by this sub section shall be exr:rcised in such manner as to Nrrr.b ATTES H

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t cause the least interference with, and the least damage to the rights of the owner thereof."

10.In or<ler 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 rnarket 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 sur:h setting of the terms, this writ perition is disposed of accordingly.

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JUDGE

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Announced

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