OrderSheet

 

IN THE HIGH COURT OF SINDH, KARACHI.

 

 

Constitution Petition No. D – 2164 of 2024

 

DATE                    ORDER WITH SIGNATURE OF JUDGE(S)

 

                                      Present:-

                                                Mrs. Justice Kausar Sultana Hussain.

                                                Mr.Justice Khadim Hussain Soomro.

 

1.       For order on office objection.

2.       For orders on C.M.A. No.2281/2024.

3.       For hearing of C.M.A. No.1590/2023.

4.       For hearing of C.M.A. No.8303/2023.

5.       For hearing of C.M.A. No.8304/2023.

6.       For hearing of C.M.A. No. 5933/2020.

7.       For hearing of main case.

 

 

The Petitioners  :         Through Mr. Faisal Nadeem Abro, Advocate

 

For RespondentNo.1:     Through Mr. Allah Bachayo Soomro, Additional Advocate General Sindh.

 

Respondent  No.4 :        Through M/s. Irfan Ali Bhugio,

          Asif Ali Bhugio and Maqsood Alam

          Advocates

 

Respondent  No.6 :         Through Mr. Muzamil Bhugio Advocate

 

Respondent  No.7 :         Through Syed Shabbir Shah Advocate

 

Date of hearing     :         13.05.2024

 

Date of Decision   :         27.08.2024

.

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                                      O R D E R

 

KHADIM HUSSAIN SOOMRO, J. :- Through the instant petition, the petitioners have prayed as under:-

                   (a)      Declare that Plot No.6/A, Unit No.3, Latifabad, Hyderabad is a residential plot and hence it cannot be converted into a commercial plot in the residential area and accordingly the conversion, if any, by any letter, N.O.C., Plan and any other document in any manner whatsoever, is illegal, unlawful, malafide, ultra-virus and unsustainable in law.

                   (b)     Declare that the petitioners being the residents of the same vicinity shall be disturbed in their easement rights and privacy if the said commercial project would be constructed upon a residential plot.

                   (c)      Restrain the respondents No.3 to 6, their servants, officers, employees, agents, factors, and all persons claiming through or under them from issuing N.O.C. for conversion of residential plot into commercial plot and approving any plan for construction of commercial project upon the residential plot No.6/A, Unit No.3, Latifabad, Hyderabad, in any manner whatsoever.

                   d)      Restrain the respondent No.7, its servants, employees, agents, factors and all persons claiming through or under it from raising any kind of construction of commercial project upon the residential Plot No.A/6, Unit No.3, Latifabad, Hyderabad and making any booking, sale agreement or creating third party interest in any manner, whatsoever.

                   e)       Cost of the petition.

 

2.      The relevant facts of the case are that the Petitioners claim to be the residents of Unit No.3, Latifabad, Hyderabad, and Respondent No.7 purchased a residential Bungalow No.6/A in the same area. Petitioners further claim that respondent No. 7 demolished the said Bungalow and announced a commercial project in the name of "Eman Shopping Mall" through advertisements. The petitioners express concern as residents of the same vicinity, highlighting the potential impact on their easement rights and privacy; moreover, there is a severe shortage of water in the entire area of Unit No.3 Latifabad, Hyderabad, but despite this, respondent Nos No.3 to 6 in collusion with Respondent No.7 miserably failed to restrain the illegal activities of the respondent No.7; hence the petitioners sent a legal notice through T.C.S.dated 26.12.2016 which was duly received by the Respondents No.5 to 7 but the same was not responded by Respondents No.5 to 7. Hence, the instant petition was filed with the above-mentionedprayers.                   

 

3.      Counsel for the petitioners mainly emphasized that the activity performed by Respondent No.7 in the vicinity by way of changing the nature of the plot in question from residential to commercial is illegal and unwarranted under the law. The approvals given by the official respondents to Respondent No.7 are also illegal; hence, the approvals are liable to be cancelled. He lastly argued that the instant petition may be allowedand restrain respondent No.7 from illegal construction, with the direction of the official respondents to cancel all the approvalsand N.O.C.s given by them to respondent No.7 for illegal conversion of the plot from residential to commercial.

 

4.      Conversely, counsel for Respondent No.7 contended that the plot in question was already commercialized in the year 2005 in the name of his first owner, namely Muhammad Ahsan Qureshi, and thereafter, the scheme of shops and flats was also approved by the competent Authority in the name of its previous owner vide letter dated 12.03.2011; and no any objection from any corner was raised until the respondent No.7 purchased the same in the year 2013. He further argued that the petitioners live far from the plot in question; however, no complaint was ever made from the nearby houses, i.e., adjacent to the plot in question; hence, no right of easement is disturbed by respondent No.7 to any of his adjacent neighbour houses is disturbed. He further argued that respondent No.7 had constructed the plot in question after obtaining approvals i.e. site plan, layout plan, and N.O.C. from the competent authorities. Hence, no illegality was committed by respondent No.7. He lastly prayed for the dismissal of the instant petition.

 

5.       We have considered the arguments advanced before us and carefully perused the material available on record.

 

6.       The petitioners, as they claim to be neighbours, being fully aware of the construction of a commercial building in question, did not immediately approach the Court by way of constitutional petition. After a lapse of several years, 11 years approached this Court, during which the construction was continuously in progress.It is not denied that construction of the commercial building was raised in the year 2005;however, in the year 2013, the ownership was transferred to respondent No.07 by one, namely Muhammad Ahsan Qureshi, who initiated the commercialization of the said residential plot.

7.      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 petitioners have 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."

 

8.      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."

9.      The writ will generally be refused where the petitioners do not demonstrate that they have 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 present case the petitioners waited for more than 11 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."

 

8.      In Case of Special Secretary-II (Law and Order), Home and Tribal Affairs Department, Government Of Khyber Pakhtunkhwa, Peshawar and others v. Fayyaz Dawar (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 P.L.C. (C.S.) 218 (State Bank of Pakistan v. Imtiaz Ali Khan and others) and 2014 P.L.C. (C.S.) 1292 (Asghar Khan and others v. Province of Sindh and others)".

 

9.      Another aspect of the present case is that respondent No.7 submitted all requisite approval, consent and no objection certificates from the concerned department. The conversion of the land from residential to commercial was duly approved by the Directorate of Planning and Development Control,HDA Qasimabad, Hyderabad, which is available on page No. 835 of the court file. The Building Control Development Department, H.A.D. and Sindh Building Control Authority also raised their no objection to the construction raised by the respondent. N.O.C and requisite documents are available from pages No. 835 to 895 of the court file. The counsels for HDA and SBCA did not controvert and affirm the genuineness of the above documents and stated that the conversion and the construction were made in accordance with the law.

 

10.    The Government of Sindh, in pursuance to the Authority granted under Clause 61 read with Section 1.8(1) of the Hyderabad Development Authority Act, 1976 (Sindh Act XIII) and Clause 6(3) and (4) of the Sindh Building Control Ordinance (Amended 1979/1982), the Hyderabad Development Authority hereby enacts the Land Use Control Scheme And Commercialization Charges. The notification also described non-residential activities as described in NRC-2 (retail) allowed on all tertiary roads having a width of more than 25.0 feet. It is a matter of fact and record that there is a 40-48-foot wide road in the surroundings of construction. The notification also described the purpose of the scheme change in the land use may be from residential to non-residential or non-residential use or as per the classification given in (Appendix -A). The petitioners have not called into question this notification.

 

11.    As per Article 19 of the Sindh Act (XIII), every scheme prepared by the Authority shall be published in the official Gazette and two local daily newspapers, one in English and another in Vernacular, for inviting objections and suggestions thereon, within thirty days of the publication of the scheme. The petitioners have not filed the objection within the stipulated time provided by the aforementioned Act. The relevant paragraph is reproduced as under:-

 

"19.   Every scheme prepared by the Authority shall be published in the official Gazette and two local daily newspapers, one in English and another in Vernacular, for inviting objections and suggestions thereon, within thirty days of the publication of the scheme.

 

12.    We now revert to the contentions made by learned counsel for petitioners regarding water scarcity or other utilities; if so,  it is noted that infringement of such rights can be established only by producing satisfactory evidence and not merely on the statements in the pleadings. There is no material on record to prove the petitioners' allegation relating to deprivation or violation of the above elementary rights by the construction of the commercial building. It is their unfounded apprehension based on subjective and abstract consideration. The hardships, inconvenience, or discomfort likely to result from the building in question must be more than "mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance, discomfort, or inconvenience must be something the law considers substantial or material. The petitioners have failed to prove infringement of their rights to privacy and scarcity of water, as there is no material to substantiate their infringement. Even otherwise, concerned authorities are duty bound to provide adequate and necessary infrastructure, such as increased water supply, etc., to meet the demand of extra need, if any, rather than restraining the construction that has been regularized in accordance with the law.

 

13.    We also observe that no illegality has been pointed out regarding the conversion of the plot in dispute from residential to commercial use; merely stating so does not suffice and cannot be said to have been in violation of the law. In the present case, the plot under question was commercialized in the year 2005; respondent No.07 acquired proprietary rights in 2013. It is on record that all the necessary approvals/sanctions and no objections as required under the law were obtained by the private respondent.

 

14.    For the foregoing facts, reasons, and discussion, this Constitution Petition is devoid of merits and dismissed along with the listed applicationswith no order as to costs. However, in case of the infringement of easementary rights, petitioners may file a civil suit in the Court of competent jurisdiction.

 

 

                                      J U D G E

                            

  J U D G E

Dated: 07.08.2024