OrderSheet
IN THE HIGH COURT OF SINDH AT KARACHI
Constitution Petition No.D – 1814 of 2019
DATE ORDER WITH SIGNATURE OF JUDGE(S)
Present:-
Mr. Justice SalahuddinPanhwar.
Mr. Justice Khadim Hussain Soomro.
1. For orders on CMA No.20169/2023.
2. For hearing of CMA No. 8147/2019
3. For hearing of main case.
For Petitioner : Through M/s. Syed Haider Imam Rizvi and
AsadullahShar advocates
For RespondentNo.1: Through Mr. JawwadDero, Additional
Advocate General Sindh.
Respondent Nos.2&3: Thruogh Mr. KhurramGhayassudin& Ms. Nazia
Siddiqui, Advocates
Date of hearing : 15.05.2024
Date of Decision : 27.08.2024
.
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O R D E R
KHADIM HUSSAIN SOOMRO, J. :- Through instant Petition, the Petitioner has prayed as under:-
(a) Issue writ against Respondents No.2 & 3, to issue an Allocation Letter in favour of the Petitioner as the successful Bidder of Plot bearing No.ST-9, measuring 437.33 SQ. Yards, situated in Sector-33/D, Korangi Township, Karachi.
(b) Consequently, this Hon'ble Court may further be pleased to Order the Respondents No. 2 & 3, to immediately perform their statutory obligation and duties in terms of Karachi Development Authority, (Revival & Amending) Act, 2016 Sindh Act No. XVI of 2016 and/or other Law Applicable at the relevant time.
(c) Permanently restrain the Respondent No.2 & 3, or any person or persons for, under or their behalf including (without limitation) its servants, employees, agents, attorneys / partners/director of officers from creating Third Party Interest on Plot No. No.ST-9, measuring 437.33 SQ. Yards, situated in Sector-33/D, Korangi Township, Karachi.
d) Issue a mandatory injunction against the Respondents, specially the official Respondents No. 2 & 3, and or any relevant / concerned authority/authority, directing them to perform their statutory and legal obligations and issue Allocation Letter and/or Challan in respect of plot purchased in Open Bid by the Petitioner.
e) Any other relief or relief's which this Hon'ble Court may deem fit and proper under the circumstances.
f) Cost of the present Petition may be awarded.
2. The relevant facts of the case are that the Petitioner purchased a Plot bearing No.ST-9 is situated in Sector-33/D, Korangi Township, Karachi, measuring 437.33 Sq. Yds. ('Subject Plot') from an open auction held on 13.06.2011, wherein the Reserve price per square yard was mentioned in the advertisement as Rs.900/- per square yard.Before participation in the bid as a security, the Petitioner had deposited a sum of Rs.200,000/- through pay order No.3588347 dated 13.06.2011. The Petitioner succeeded in an open bid and was recognized as the Highest Bidder by Respondents No.2 and 3, with a bid of Rs.2400 per square yard. Accordingly, the final price for the Subject Land amounted to Rs.1,049,592, as per the calculated total.The Petitioner promptly remitted an amounting to 25%, specifically Rs.62,400, via Pay Order No.3588383 dated June 18, 2011, and awaited a demand letter/allocation letter per the bidding terms prescribed in the auction advertisement. Still, since then, no plausible reply was given by the concerned officer of Respondent No.3. However, the Petitioner personally visited the office of Respondent No.3. Hence, the Petitioner wrote many letters to Respondent No.3 from 18.06.2011 to 14.09.2018, which exercise becomes futile as no response was given by the concerned officer of Respondent No.3. Finally on 04.03.2019 a legal notice was sent to the respondent No.2 which was duly received by the concerned officer of Respondent No.2 which was also gone unresponsive by the respondents. Respondent No.3 failed to issue an allocation letter and/or challan for the remaining 75% as per the advertisement, which is clearly an illegal and unlawful exercise on the part of Respondent No.3. Hence, the Petitioner has filed the instant Petition with the prayers mentioned above.
3. Learned counsel for the Petitioner contends that the Petitioner has purchased the plot in question in an open auction after completing all the codal and procedural formalities. However, the Respondents, on flimsy grounds such as a non-production of CNIC, cancel the plot of the Petitioner; that the Petitioner has paid the requisite amount in the concerned bank in the shape of bank draft dated 13.06.2011; that the Petitioner from time to time approached the respondents for finalization of auction proceeding viz. execution of the lease deed in favour of the Petitioner, however, the respondents did not issue the subsequent challan in his favour for which the Petitioner moved various applications but all in vain; that the Petitioner has also issued a legal notice dated 04.03.2018, but neither the reply of the notice was given, nor the grievance of the Petitioner was redressed; that the respondents have failed to perform their statutory duty. Lastly, he argued that the plot cannot be cancelled without assigning a cogent reason and due notice or the opportunity of hearing to the Petitioner. Learned counsel for the Petitioner has relied upon the case laws reported as 2020 SCMR 1957, 2009 CLD 1336, 2015 YLR 1051, PLD 1975 KAR. 373, PLD 1999 KAR.250, PLD 1976 KAR. 830, 2010 MLD 486, 2007 MLD 2003, 1985 SCMR 880, 2004 SCMR 400, PLD 2007 SC 642, 2003 PLS(CS) 56 and 1987 SCMR 1119.
4. On the other hand, learned counsel for the Respondents has contended that the Petitioner did not pay the remaining auction amount within the stipulated time the authorities cancelled the plot of the Petitioner, that the plot in question is declared as an amenity plot that can only be allotted to a registered charitable institution, whereas, the Petitioner has not applied for it.
5. It is undisputed that the subject plot was put in an open auction held on 13.06.2011, which the Petitioner purchased through auction proceedings and an amount equal to 25%, i.e. Rs.62,400/- through a Pay Order No.3588383 dated 18.06.2011, under theterms and conditions of the allotment. According to rule No 08 sub-rule 7, of the Karachi Development Authority Rules for Disposal of the Land 1971(The rules), the Petitioner was required to pay the second instalment within one year and the third within two years of the acceptance of the bid by the Authority. It is a matter of fact and the record that except for the initial payment, not a single instalment was paid by the Petitioner within the stipulated time; thereupon, the Authority cancelled his plot. As per counsel, the Petitioner approached the respondent for the finalization of the auction proceedingviz the execution of the final lease deed in his favour, for which he was ready to pay the remaining amount to the department and moved an application from time to time. We have examined those applications addressed to the Municipal Commissioner Karachi and Director General KDA and annexed them from pages 21 to 25 of the court file. A preliminary review of the application does not, on its face, indicate that the receipt has been acknowledged. However, two applications are annexed on pages 27 to 29, showing that they were received in 2018, one year before the filing of the instant Petition. On the specific query from the counsel for KDA with regard to applications, he replied that no application was received by the Authority.
6. The parties do not contest that the subject plot is designated as an amenity plot reserved for hospital use. According to Rule 11 Sub-Rule 1, the amenity plot is to be allotted to a deserving registered and charitable institution. However, the perusal of the pleadings and the record does not demonstrate that the Petitioner has any registered charitable institution for which the subject plot was allotted to him; hence, For ready reference, Rule 11 Sub-Rule 1 is reproduced as under:
"11. (1) All amenity plots, including sites, Schools, other educational institutions, hospitals, maternity homes, mosques, and imam barhas, in all the running Schemes of the Authority, including the Clifton Schemes, will be allotted to the deserving registered and charitable institutions".
7. As mentioned above, the rule outlines a provision regarding the allocation of amenity plots within ongoing development projects overseen by the Authority. These plots are designated for public facilities such as schools, hospitals, mosques, etc. The allocation is to be made to registered and charitable institutions that meet the criteria set by the Authority for deserving entities. This implies that qualifying organizations that fulfil the stipulated criteria will be granted the right to use the plot for the provision of essential public services or facilities within the community.
8. Besides, the Petitioner has not requested any relief regarding the "Cancellation" of the plot by the Authority. This omission is significant, as the Petitioner should have directly challenged the cancellation in the Petition. Without specific relief sought for the "Cancellation", the main request for a Court "Declaration" cannot be granted. The Petitioner must first establish that the cancellation was improper or invalid before this Court can consider granting a declaratory judgment. The Petition is incomplete and lacks the necessary grounds to challenge the cancellation. The Petitioner should have outlined specific reasons why the cancellation was unlawful or unjustified and sought appropriate relief, such as quashing the cancellation order. By failing to seek relief against the cancellation, the Petitioner effectively accepts the validity of that action. This Court cannot grant the primary declaratory relief without first addressing the underlying cancellation issue
9. Another important aspect of the instant matter is that the Petitioner filed the Petition on 14-03-2019, challenging the cancellation of the subject plot after a lapse of about eight years. The counsel has referred to the unreceived application to justify the laches. Here, there is a need to understand the differentiation between laches and limitations. The filing of legal proceedings has been delayed, exceeding the specified period under the Limitation Act 1908. The same could be condoned if the Petitioner successfully explained each day's delay in initiating the legal proceedings. This is in accordance with Section 5 of the Limitation Act 1908. However, the instant case petitioner has taken excessive time to file a Constitutional petition, for which the law prescribes no specific time frame, but it should be filed within a reasonable time.When a Constitutional petition is filed, the Court will consider the question of laches based on fairness and justice. TheCourt has the discretion to exercise Constitutional jurisdiction, and any relief granted is based on equitable principles.In the event that the High Court determines that the Petitioner has a stronger claim, the Court should use its discretion. However, if the High Court finds that the party seeking Constitutional jurisdiction has shown deliberate inaction, laziness, or negligence in pursuing their rights, the Court may dismiss their case based on the concept of laches.The question of delay or laches should be based on the specific circumstancesof each case, and there is no fixed rule in this regard.
10. The issue of laches in the context of a writ petition was thoroughly addressed in the case of Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119. Here is the extract from the precedent is reproduced as under:-
"There is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed, in the latter, subject to statutory relaxations in this behalf; nothing is left to the discretion of the Court. It is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For, example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches."
11. It is inherent in the doctrine that procrastination undermines equity, a principle that favours those who are vigilant and not indolent. Laches, in its elementary sense, signifies a failure to undertake actions that ought to have been performed within a reasonable temporal framework. The assessment of laches in a constitutional petition is invariably contingent upon the conduct exhibited by the individual seeking constitutional recourse, but in the instant case, the Petitioner could not justify the delay in filing the Petition. In Case of Special Secretary-II (Law and Order), Home and Tribal Affairs Department, Government Of Khyber Pakhtunkhwa, Peshawar and others v. FayyazDawar (2023 SCMR 1442), it was held by Apex Court that: "There is no exception to the rule that a delay in seeking remedy of appeal, review or revision beyond the period of limitation provided under the statute, in absence of reasonable explanation, cannot be condoned and in the same manner if the remedy of filing a constitutional petition is not availed within reasonable time, the interference can be refused on the ground of laches. Delays would defeat equity, which aids the vigilant and not the indolent. Laches, in its simplest form means the failure of a person to do something which should have been done by him within a reasonable time. If the remedy of the constitutional Petition was not availed within a reasonable time, the interference could be refused on the grounds of laches. The question of laches in a constitutional Petition is always considered in the light of the conduct of the person invoking constitutional jurisdiction. Ref: PLD 2013 SC 268 (Umar Baz Khan v. Syed Jehanzeb and others), 2004 SCMR 400 (Farzand Raza Naqvi and others v. Muhammad Din through Legal Heirs and others), 2012 SCMR 280 = 2012 PLC (C.S.) 218 (State Bank of Pakistan v. Imtiaz Ali Khan and others) and 2014 PLC (C.S.) 1292 (Asghar Khan and others v. Province of Sindh and others)".
12. The constitutional Petition is filed to seek remedies from a court, together with constitutional remedies; the Court may still consider the element of delay in certain situations. If a petitioner delays unreasonably in approaching the Court with their writ petition, and if the delay results in prejudice to the opposing party or undermines the principles of equity and justice, the Court may apply the principle of laches or staleness. In such cases, the Court might exercise its discretion to refuse relief based on the delayed filing of the constitutional Petition. It's important to note that the application of this principle depends on each case's specific circumstances and the Court's discretion, which is missing in the present case, and the Petitioner could not make out the case to grant the discretionary relief in her favour. The reliance can be placed in the case of Syed NawabRaunaq Ali's case PLD 1973 SC 236.
13. Now, turning towards the legal principle conveys that a court operating in equity, concerned with fairness and justice, will decline to provide assistance or remedy to legal claims that have become stale or inactive over time. If a petitioner has not promptly asserted their legal rights and acquiesced or remained passive for a significant duration, the Court may deem the claim "stale." In such cases, the Court may refuse to intervene or grant relief due to the Petitioner's prolonged inaction and lack of timely asserting their rights. This principle highlights the importance of diligence and prompt legal action to seek equitable remedies. Reliance can be placed on Chapters 641–642, specifically Monographs 1181–82 of Halsbury's Laws of England, Third Edition, Volume 14, which deal with laches and read as under:-
"A Court of Equity refuses its aid to stale demands, where the plaintiff has slept upon his right and acquiesced for a great length of time."
14. The concept of laches is not an abstract or technical rule. It applies when it would be unfair to grant a remedy because one party's actions could be seen as a waiver of that remedy or because one party's actions and indifference put the other party in an unreasonable position to assert that remedy later on. Two crucial factors in these cases are the duration of the delay and the nature of the acts done during that time, which can impact both parties and create a balance of justice or injustice regarding the remedy. The reliance can be placed on Lindsay Petroleum Company v. Hurd ((1874) L.R. 5 PC 221), which was observed on pages 239 & 240:
"The doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine where it would be practically unjust to give a remedy either because the party has, by his conduct done that which fairly be regarded as equivalent to the waiver of it or where by his conduct and neglect he had, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, Two circumstances, always important in such cases are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course of the other, so far as relates to the remedy."
15. The writ will generally be refused where the Petitioner does not demonstrate that he has proceeded expeditiously after discovering that it was necessary to resort to it. In all such cases, the Petitioner must act speedily, and any unreasonable delay will warrant refusal. Such instances call for an extra dose of rigour while enforcing the rule of laches. Thus, laches denied the entitlement to the writ in the case where the Petitioner waited more than eight years. The Law of Extraordinary Legal Remedies by Ferris 1926 Edition, monograph 176 at page 202, which for the relevant purpose reads as under:
"The writ will generally be refused in all cases where Petitioner fails to show that he has proceeded expeditiously after discovering that it was necessary to resort to it, and especially its use. In all such cases of public detriment or inconvenience Petitioner must act speedily, and any unreasonable delay will warrant refusal. In such cases the rule of laches is applied and enforced with particular strictness. So where Petitioner delayed over ten months after his discharge, and nine months after notification thereof, the right to the writ was barred by laches."
16. In light of the foregoing legal and factual matrix, this Petition is hereby dismissed together with the listed applications enumerated herein. However, the KDA department must reimburse the Petitioner for the first 25% paid during the auction with 10% interest per annum because the subject land was allotted to him in blatant disregard of the rules discussed in this judgment.
J U D G E
J U D G E
Dated: .08.2024.