Order Sheet
THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO
Constitution Petition No. D-131 of 2025
(Syed Muhammad Alam Shah Vs. P.O. Sindh
through Chief Secretary & Ors)
|
Date Of Hearing |
Order with Signature of Hon’ble Judge |
Before:
Mr. Justice Muhammad Saleem Jessar,
Mr. Justice Nisar Ahmed Bhanbhro,
1. For order on office objection “A”.
2. For hearing of M.A.No.538/2025 (S/A).
3. For hearing of main case.
Petitioner: Syed Mohammed Alam Shah
Through Mr. Ahmed Hussain Shahani, Advocate.
Respondents: Province of Sindh & Others
Through Mr. Liaquat Ali Shar, Additional Advocate General, Sindh assisted by Mr. Abdul Waris Bhutto, Assistant Advocate General, Sindh along with Engr. Zulfiqar Ali Kalwar, Project Manager, Ghotki Kandhkot Bridge Project/respondent No.8, Abdul Ghani, Mukhtiarkar Kandhkot on behalf of Assistant Commissioner, Kandhkot and Deputy Commissioner, Kashmore at Kandhkot, SIP Rukan Din of PS A-Section Kandhkot, SIP Ghulam Bahoo and ASI Qadir Bux of PS B-Section Kandhkot.
Mr. Riaz Hussain Khoso, Deputy Attorney General for Pakistan.
Date of hearing: 06.05.2025
Date of Order: 06.05.2025
ORDER
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Nisar Ahmed Bhanbhro, J. Through instant petition, the petitioner has claimed for following relief (s):
a) To stop / restrain the respondents from construction of fly over at N-55 at Kandhkot site for Ghotki-Kandhkot Bridge Project as the site has been declared unfeasible for the project by NHA and same has been finalized due to political influence, hence the Respondent may be directed to stop construction work of the same.
a) To direct the Respondents that construction of fly over at N-55 at Kandhkot site for Ghotki-Kandhkot Bridge Project may be done at suitable place which does not create any harm to the petitioner.
b) To direct the Respondents No.6 & 7 to carry out land acquisition process as per law as they have not proper notices to many land owners and they are not following the proper procedure as per law.
2. Succinctly stated, the facts leading to this petition are that Government of Sindh is constructing bridge over Indus River, which will connect Ghotki with Kandhkot. Bridge will connect N-5 and N-55 highways, for this purpose and to facilitate smooth flow of traffic, a fly over is under construction Kandhkot site of N-55 Indus highway. The petitioner is aggrieved by alignment of Fly Over designed to connect N-55 with Ghotki – Kandhkot Bridge. Per assertion of the petitioner that the alignment of Fly Over is faulty and it will cause heavy accidents, in support of such assertion he relies upon a letter written by Project Director Highways Safety Sukkur to General Manager, National Highways Authority Sukkur for reviewing the design of Fly Over, as it was connecting Ghotki-Kandhkot interchange N-55 highway at the distance of 200 meters, which is technically not workable. Petitioner asserts that Director Highways Safety Sukkur through letters dated 23rd August 2022 and 21st January 2025 has intimated Project Manager, Ghotki Kandhkot Bridge, Project that the designer has connected N- 55 highway at a distance of 200 meters away from the subject fly over which will cause ambiguity for commuters and will result in road accidents, therefore alignment of Fly Over requires changes to avoid accidents in future.
3. On notices, Respondent No. 8 (Project Manager, Ghotki-Kandhkot Bridge Project) has submitted its reply and placed on record documents relating to the approval and design of construction of fly over. Respondent No.8 has averred that present petitioner had also filed F.C Suit No.76/2020 before the Court of Senior Civil Judge Kandhkot claiming the same relief, but said suit was dismissed as withdrawn. It is further averred that project has been approved in consultation with the National Highways Authority and Consultant National Engineering Services of Pakistan. That the land of petitioner has been acquired through due process of law and in order to save his land, the petitioner is obstructing in the construction of fly over. The Petition is not maintainable, as project was initiated in year 2016 and it is about to be completed soon. It is the longest bridge over River Indus and will connect National Highway N – 5 with Indus Highway N – 55. Petitioner has brought this Petition to settle personal scores with mala fide intentions.
4. Mr. Ahmed Hussain Shahani, Learned Counsel for Petitioner contended that the designed fly over connecting N-55 highway at Kandhkot is faulty and will result in road accidents therefore, it would be appropriate that the alignment of proposed fly over connecting N-55 Highway to Kandhkot– Ghotki Bridge may be altered. He contended that no harm would be caused to Government or any other party if the proposed alignment is changed and fly over is erected at the place which facilitates public at large and fulfills safety standards.
5. Mr. Liaquat Ali Shar, learned Addl. A. G Sindh, assisted by Mr Riaz Ahmed Khoso Deputy Attorney General Pakistan, contended that fly over is under construction being part of Ghotki – Kandhkot Bridge Project. The bridge, road and Fly Over has been designed unanimously by National Highway Authority and Works & Services Department Government of Sindh in consultation with experts after assessing all aspects. The project is under construction since last more than nine years and it is unique project comprising of 12 Kilometers long Bridge over Indus River. It would be longest Bridge over Indus River. Petitioner since commencement of said project has caused hindrance in the construction of road. He intends to avoid acquisition of land which he cannot do under the law. The Fly Over is being constructed to give connectivity of bridge to N-55 Indus Highway, its alignment does not affect the rights of Petitioner in any manner. The grievance of petitioner involves factual controversy which cannot be adjudicated under writ jurisdiction of this Court. He prayed for dismissal of petition.
6. Heard Learned Counsel for parties and perused the material available on record.
7. Meticulous perusal of record reveals that the Government of Sindh has approved Kandhkot-Ghotki Bridge on Indus Highway to connect N-5 National Highway with N-55 Indus Highway facilitating the people of Districts Kandhkot-Kashmore, Jacobabad and Ghotki. The construction of Bridge will create new avenues for the people of the area to earn livelihood, it will reduce distance between adjoining districts from almost about 200 Kilometers to a shortest one of eighty kilometers. The area where Bridge is being constructed is poverty ridden, which lacks communication facilities. This Bridge will bring the people of remote area closer to cities and will help them in getting education and promote economic activities. This project has its unique characters which will usher into a new era of massive uplift in the area. This project has already been delayed due to laworder situation in the area. In the comments filed by the Project Manager of the Kandhkot Ghotki Bridge it has been stated that the project was initiated after conducting technical, feasible study, preliminary design reports, initial environmental impact, soil reports and the expected socio-economic achievements. This study involves the engagement of experts from Pakistan and abroad. It is further pointed out that Government of Sindh, Works & Services Department vide its letter dated 14th February 2025 through Senior Chief (Development) for Secretary to Government of Sindh, Works & Services Department had written letter to Chairman, National Highway Authority clarifying the planned alignment of Ghotki Kandhkot Bridge, allied fly overs, wherein it has been stated that the matter of alignment was finalized after discussing with the Director (Design) (NHA), Director (Highway Safety) NHA and in consultation with the consultant from National Engineering Services of Pakistan. The record further reveals that the National Highway Authority vide its letter dated 22nd October 2024 has granted NOC in favour of the Provincial Government for the construction of Bridge and fly over as per the proposed alignment. The work is going on and progress is made after due consultation with National Highway Authority.
8. Per Government of Sindh, the project was an initiative towards the sustainable development in the poverty struck areas of Kashmore and Kandhkot, where poverty has risen to an alarming stage, in order to root out poverty, it is essential that the people of this area be given connectivity to the nearby big cities, which help them in bringing their agricultural commodities, diary products and handicrafts to city areas and they would earn bounty to pass livelihood. Instead of supporting such projects the Petitioner since inception endeavored to stop it by hook or crook as he knows that human development in the area may crush his so called hegemony. The concept of "Sustainable Development" was given recognition for the first time in Stockholm Declaration of 1972 and its definition given in the Brundtland report was accepted 'development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.' In Pakistan this concept finds mention in Pakistan Environmental Protection Act 1997, section (2)(xlii) defines sustainable development in following manner:
'sustainable development' means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs." The legislation appears to be inspired by the Stockholm Declaration 1972 while framing Pakistan Environment Protection Act 1997. In real sense sustainable development means Improving the quality of life in a city, including ecological, cultural, political, institutional, social and economic components without leaving a burden on the future generations. To improve the quality of life well developed infrastructure system is a paramount consideration. For sustainable development we need to focus on communities rather on individuals, we need to focus on human spirit. Vision of sustainable development can be achieved by participatory dimension of social, economic and ecological development of a society. If we keep a segment of society down trodden and individually fly to the heights we cannot achieve sustainable development. Petitioner has to play a participatory role in the economic development, he needs to be positive and allow the development work continue and completed in time so that its benefits are reaped by the society at large to get group of people converted into sustainable communities. This project envisions to promote key sectors of society, including businesses, therefore ought to get completed within stipulated time. The Project Management should utilize all its resources to make the project workable in near future.
9. The petitioner has called in question the execution of a development project for which the petitioner has to demonstrate his bona fides. The record as made available prima facie indicates that the petitioner intends to save his own land from being utilized in the Project despite of having availed compensation award through Land Acquisition Authorities. The petitioner is not an expert, he is a layman. He has relied upon certain documents which are part of internal communications in between two departments discussing the possibilities of fixing an alignment of fly over. Such communication between official departments is routine work and the same cannot lay basis to obstruct the execution of a development work, particularly when National Highway Authority has issued NOC in favour of the project for the construction of fly over.
10. The petitioner has filed this petition with unclean hands, he did not disclose in pleadings that for the similar relief he filed a Suit bearing No.67/2020 before the Court of learned Senior Civil Judge, Kandhkot and the said relief was declined to him vide order dated 31.03.2021. One Syed Ghulam Hyder Shah had also filed application before learned Sessions Judge Kashmore seeking registration of FIR against the officers and employees engaged in execution of project, which was also declined. Such fact has not been mentioned in the memo of petition. The petitioner for claiming the equitable relief under writ jurisdiction has to do equity, but he did not appear before this Court with clean hands, therefore cannot claim equitable relief.
11. Petitioner if aggrieved by the construction of Fly Over on the basis of any technical faults should have challenged it with promptitude, and such a challenge must be before the execution of the project is undertaken. Challenge at belated stage on any of the claims including those of pro bono public would not sustain, once the execution starts, it starts eating public exchequer and any delay in the execution of the project would defeat the very concept of time value of money which is primary factor in implementation and execution of project. Delay in execution of project would amount to over run in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the Court at that time. Just because a petition is termed as a pro bono public does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them. Public Interest Litigation is an innovation essentially to safeguard and protect the rights of people guaranteed under the constitution. The Project Manager of the project (Respondent No 8) in its reply in Para No 4 has categorically stated that Works and Services Department Government of Sindh initiated the Ghotki – Kandhkot Bridge Project to establish a direct connection between Ghotki and Kandhokot by connecting the longest bridge over the Indus River in Pakistan, thereby enhancing traffic flow between then se major cities. In line with the objective Government of Sindh launched Transaction Advisory Services in 2016 by engaging independent legal, technical and financial consultants through competitive bidding process in year 2016 and after award of contract in year 2017 work was started. The Project Manager in its reply has surprised us with an assertion that after the initiation of project and start of work, the Petitioner constructed a Masjid and Maderssa near the carriage way of the project, which established his mala fides to obstruct the project. This assertion by the Project Manager has not been denied by the Petitioner through any counter affidavit or rejoinder to that effect, which stains the pro bono public status of the Petitioner. In fact under the garb of a Public Interest Litigation Petitioner has brought a Publicity Interest Litigation or 'Private Inquisitiveness Litigation' with a malicious design to halt the socio economic development of the area, and to frustrate a mega development project. Petition suffers from laches as it has been filed 9 years after the commencement of project.
12. When confronted, how the petitioner is aggrieved from execution of a project relating to infrastructure in Katcha Area of the province, Learned Counsel submits that he has approached this Court as Pro Bono Public and his endeavor to seek change in alignment of the fly over aimed at saving the lives as the proposed alignment of the Fly Over contained a sharp curve which will endanger lives. Whether to have an infrastructural project or not, how it be designed and how it be undertaken and executed are part of policymaking process, technical in nature which need an expert mind of engineer to conceive the idea and implement it, the Courts are not that well equipped to adjudicate the technical matters relating purely to policy decisions specially those of development projects which fall under the domain of executive authority to decide to adjudicate on a policy decision.The Court, no doubt,has a duty to see that in decision making, no law is violated and fundamental rights guaranteed under the constitution are not transgressed. The Government of Sindh has launched Kandhkot – Ghotki Bridge project with an aim for socio-economic development of the area, for execution of the scheme, a separate project management unit headed by Project Manager has been established. Prior to start of scheme, services of technical experts were hired to assess the social, environmental and development impact of the scheme, thereafter the project has been initiated and it has been informed that the project is at the stage of completion. Any interference into the affairs of executing agency at this stage would amount to judicial over reach and encroachment upon the powers of executive.
13. Honorbale Supreme Court of Pakistan in the case of Federal Government Employees Housing Authority through Director General Islamabad Versus Ednan Syed and others reported in P L D 2025 Supreme Court 11 has been pleased to hold as under:
“16. The Constitution does not envision that the courts are bestowed with unfettered powers that can be exercised within the disguise of judicial review. The judicial power is the power that is defined by the Constitution and law. It may vary from one institution to the other, such as this Court's jurisdiction is distinct from that of the High Court. However, the underlying principle remains that the judicial review of legislative and executive actions is not an unlimited or unbridled authority of the courts but the one circumscribed or confided by the Constitution and the law. The gateway to invoke judicial review of the High Court is only when there is an application or appeal by the aggrieved or affected party. In the absence of any such application, the High Court may enter into the domain of judicial overreach, which is the exercise of power without any legal basis and the same falls within the ambit of interference and encroachment on the legislative and executive domain. Consequently, such absolute judicial expansionism offends the principle of separation of powers. Therefore, the Impugned Judgment and the Impugned Order clearly fall within the scope of judicial overreach and infringe the Constitution.”
14. Per Petitioner the alignment of fly over has been strongly opposed by the Director Highway Safety National Highway Authority, to this concern, the Respondent No 8 in Para No 10 of the reply has written that the Director Highway Safety had certain ill intentions, his insatiable demands could not be met, therefore, he started making correspondence to create confusion to potentially jeopardize the project. Project Management in consultation with Government of Sindh approached the Higher Forum of National Highway Authority, apprising the misleading letters issued by Director as Government of Sindh and National Highway Authority had approved all the designs and lay out plans unanimously. NHA Authority took notice of the matter and assured that no such correspondence would surface in future. In no manner the National Highway Authority has desired to stop development project, but based upon the application of petitioner a concern in the design and alignment of Fly Over was shown by Director Highway Safety who from face of the facts appeared to be intermingled with the petitioner to harass the project management for extraneous considerations. Even otherwise this aspect of the project is a question of factual controversy that can only be thrashed out after recording of evidence and cannot be resolved by this Court under its writ jurisdiction.
15. No doubt this Court, under its writ jurisdiction, can issue directions to the entities performing functions in connection with the affairs of Federation and province, on application of an aggrieved person complaining infringement of fundamental rights. It is strange that how a person can be aggrieved, if an agency performs its functions to execute the development project relating to infrastructure development. The Petitioner is not an aggrieved person, so as to invoke the writ jurisdiction of this Court under article 199 of the Constitution.This Court does not interfere in every issue of public concern under Article 199 of the Constitution but only where the action of the executive authority is in violation of law and raises the question of enforcement of a Fundamental Right.
16. Honorable Supreme Court of Pakistan in the case of Javed Ibrahim Paracha v. Federation of Pakistan reported in PLD 2004 SC 482 has held as under:
"a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word 'pro bono publico' as defined in Black Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means 'for the public good' or 'for welfare of the whole' being or involving uncompensated legal services performed especially for the public good. 'Public interest' in the Black Law Dictionary, has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate his grievance as pro bono publico."
17. Honorable Supreme Court of Pakistan in the case of Muhammad Bashir v. Abdul Karim reported in PLD 2004 SC 271, while dealing with the powers of High Court under writ jurisdiction has held as follows:
"This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress".
18. Development Schemes fall within the policy making domain of the Federal and Provincial Government. The Principles of Policy enshrined in Part II - Chapter 2 of the Constitution holds state responsible for promotion of social and economical well being of the people. Federal and Provincial Government in order to provide basic facilities to people necessary for promotion of social, economic well-being of the people devise policy planning and execution of development projects on the basis of need and priorities. The implementation of projects is not an easy task, it sucks hard earned money of tax payers. Articles 29 and 38 of Chapter 2, Part-II of the Constitution in this regard make state responsible to invent policy for socio economic development subject to financial resources. Executive enjoys powers to conceive development project, and such exercise cannot be ordinarily interfered with by this Court by invoking its jurisdiction under Article 199 of the Constitution, unless shown to be mala fide or in violation of the fundamental rights guaranteed under the Constitution to every citizen of this Country, thereby affecting the interest of public at large.
19. Honorable Supreme Court of Pakistan in the case of Watan Party and another Versus Federation of Pakistan and others reported in PLD 2013 Supreme Court 167 has held as follows:
“7. We are afraid that at the instance of petitioners, in order to expedite the progress of the Project, we cannot assume the functions of policy making or determining the priorities of various development projects in the country, which are the exclusive domain and functions of the Federal and Provincial Government, as the case may be, who have their own ministries, departments, commissions and consultants, etc. for policy making, determining the priorities of various development projects and its implementation. It is pertinent to mention here that under the scheme of the Constitution having its structure based on trichotomy of power amongst its different organs i.e. legislature, executive and judiciary, each of its organ has to work and exercise its authority strictly within its mandate, without encroaching upon or usurping the jurisdiction/functions of any other organ of the State.”
20. Petitioner when confronted with above legal and factual position, he failed to demonstrate his bona fide, lending support to the stance of Project Management that Petitioner is a trouble maker. Petitioner has failed to establish that his fundamental rights were at stake, to make out case for indulgence by this Court under its writ jurisdiction.The Petition being misconceived, hit by laches, devoid of merits is hereby dismissed along with listed applications if any. Taking a lenient view, cost is not imposed, but Petitioner is warned to remain careful in future, if he in any manner causes hinderances for execution of project, the management may approach the District Administration for appropriate action.
Judge
Judge
M Yousuf Panhwar/**