1. ' SAIYED SAEED ASHHAD, C.J.---In this constitutional petition, the petitioner has sought the following reliefs:--
(i) Declaring that the installation of High Tension electric wires through the petitioner's plot of land bearing Survey No,121, Deh Thatta, Taluqa and District Thatta by the respondents Nos.1 and 2 is illegal, unauthorized and mala fide.
(ii) Directing the respondents to remove the said High Tension electric wires from the petitioner's said land without further delay.
(iii) Cost of the petition.
(iv) Any other relief or reliefs which this Hon'ble Court may deem fit and proper under the circumstances of the case.
2. ' The brief facts of the case are that the petitioner is the owner of land bearing Survey No, 121, Deh Thatta, Taluqa and District Thatta on which the petitioner planned to construct a charitable hospital under the name and style of "Shaafi Hospital" the building plan of which was approved by the Thatta Municipality. The petitioner further submittedthat on visiting his plot he found that respondent No,2 had erected polls near the petitioner and High Tension electric wires were passing through the center of the petitioner's aforesaid land. It was submitted that respondent No,2 had illegally placed High Tension electric wires over his land without his permission, which amounted to infringement of the petitioner's legal right in respect of his land as well asencroachment. The petitioner approached respondent No,2 for removal of the High Tension electric wires passing through his land, which were also creating hindrance in the construction of the proposed hospital but respondent No,2 refused to remove the same. A notice, dated 25-4-2003 was addressed to respondent No,1 with a copy to respondent No,2 calling upon them to remove the said High Tension electric wires from the petitioner said land but to no avail.
3. ' Comments were filed on behalf of the respondents, wherein preliminary objections were raised with regard to the maintainability of the petition. On facts it was submitted that the High Tension electric wires were passing over the land of the petitioner for the last 20 years and he did not take any objection for the last 20 years. It was further submitted that there is a procedure for removal of the polls/High Tension electric wires for which an estimate was to be prepared, the petitioner was required to deposit the estimated shifting charges but the petitioner never bother to follow the procedure in spite of having been informed. It was denied that the passing of the High Tension electric wires over the land of the petitioner amounted to violating his fundamental right or any principle of natural justice.
4. ' Counter-Affidavit was filed by the petitioner in reply to the comments filed on behalf of the respondents, wherein the statements made in the parawise comments contrary to the facts stated in the memo of petition were vehemently denied. It was stated by the petitioner that he contacted Syed Mushtaq Shah, Member of WAPDA Committee for removal of the High Tension electric wires in September, 2002 but no action was taken. It was also stated that the above act of the respondents did infringement of legal right to his land and also acted in breach of natural justice as no notice was given to him or he was heard before encroaching upon his land for installing High Tension electric wires.
5. ' We have heard the arguments of Mr. Aziz A. Munshi, Advocate on behalf of the petitioner, Mr. Nasir Rizwan Khan, advocate on behalf of the respondents and have also perused the material on record.
6. ' The respondents had prepared the estimate of the cost/ expenditure which would be required in shifting the High Tension electric, wires passing over the land of the petitioner, which amounted to Rs,90,670. On 16-10-2004 Mr. Aziz A. Munshi, the learned counsel forthe petitioner for amicably settling the dispute had stated that the petitioner was ready and willing to bear 50% of the cost without prejudice to the other rights available to him in respect of damage or has caused to him by the illegal action of the respondents. Mr. Nasir Rizwan Khan, learned counsel for the respondents was asked to convey the above offer to the concerned authorities of the respondent and to submit their reply. The said offer was not accepted by the respondents, whereupon the petitioner withdrew his above offer and requested that the petitioner may be decided on merits. Subsequently, Mr. Nasir Rizwan Khan submitted that the estimated cost had been reduced from Rs,90,670 to around Rs,60,000 and that the petitioner should bear the same as it would be slightly in excess of Rs,45,000 which amount the petitioner was ready and willing to pay as 50% of the earlier estimated charges of Rs,90,670. In this connection it is to be observed that after rejection of the offer of the petitioner by the respondents, the petitioner had withdrawn his offer and had requested for decision of the petition on merits.
7. ' First of all we would like to deal with the question of laches in filing the constitutional petition. It was emphatically urged on behalf of the respondents that the petition suffered from laches as the above High Tension electric wires were installed over the land of the petitioner 20 years ago but he did not take any objection till 2002 when a legal notice was served by him on the respondents calling upon them to remove the High Tension electric wires passing over his land. In this connection it is to be noted that the petitioner had stated that he had no knowledge of installation of High Tension electric wires over his land as he never used to go there and made a visit to the land in 2002 when he had decided to construct a hospital whereupon he found High Tension electric wires passing over his land upon which he took up the matter with the respondents. Mr. Aziz A. Munshi submitted that in the circumstances the question of laches did not arise as the petitioner had no knowledge of the illegal act committed by the respondents over his land It was further submitted that even if it be admitted for the sake of arguments that the petitioner had knowledge of installation of High Tension electric wires over his land then such installation constituted a continuing wrong, thus giving a cause of action to the petitioner on every day bill such 'illegal' installation remained intact. In support of his above contention he placed reliance on the judgment in the case Khuda Bux v. Superintendent of Police, Badin and others, reported in PLD 1976 Karachi 1005. In this case a Division Bench of this Court held that an impugned order, which was in the nature of continues wrong would provide a cause of action continuously till such wrong continued to exist. We may also refer the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority, reported in 1999 SCM R 2883, wherein the Supreme Courtobserved that laches per se was not a bar to 'a Constitutional petition and the question whether a Constitutional petition suffered from laches would require examination on equitable principle and with reference to the facts of each case. The Supreme Court further held that laches of several years could be overlooked if the facts of the case and dictates of justice so warranted or the laches of few months might be fatal to a constitutional petition. An examination of equitable principles with reference to the facts and circumstances of the present case, the delay of several years, which otherwise is not established in view of the stand taken by the petitioner, will have to be overlooked. In view of the above, we hold that the question of laches does not arise in the present constitutional petition.
8. ' It is also to be noted that the land in question belongs to the petitioner and passing of the High Tension electric wires over his land amounted to infringement of his right to use the land according to his choice as it restricted the construction of a building other than a ground storey building. Such restriction amounted to restraint over the petitioner from using the land according to his choice and rendered the construction of a charitable hospital impossible. It is a fact that the respondents were required to obtain permission/no objection from the petitioner before installing High Tension electric wires over the land of the petitioner, which is a requirement of section 14 of the Wapda Act, 1958. Proviso to subsection (1) of section 14 of the Wapda Act casts an obligation on Wapda that for entering upon and surveying any land, erect pillars for the, determination of intended lines of works, make borings and excavations and do all other acts which may be necessary for the preparation of any scheme which does not vest in the Wapda, the power conferred by subsection (1) of section 14 is to be exercised in such manner as to cause the least interference with, and the least damage to the rights of the owner thereof. Subsection (2) of section 14 provides the Wapda to pay or tender payment for all necessary damage to be done as aforesaid to the owner of the land. Installation of High Tension electric wires over the land of the petitioner without any doubt infringed the right of the petitioner for use of his land in a manner desired or chosen by him. It is also a fact that such exercise was done without notice and obtaining permission of the petitioner. It was submitted by Mr. Aziz A. Munshi that the High Tension electric polls and the High Tension electric wires passing over the land of the petitioner not only restricted the user of the plot in a 'manner desirable by the petitioner but also endangered the lives of the petitioner and others, who would be using the land, on account of the discharge of electromagnetic field or other such hazards due to the installation of High Tension electric wires, thus violating the provision of Article 9 of the Constitution, which guarantees that no person shall be deprived of life or liberty save in accordance with law ' The Supreme Court in the case of Ms. Shehla Zia and others v. Wapda reported in PLD 1994 SC 693 was faced with the identical and similar issue whether construction of any grid station, factory, power station or installation of. High Tension electric wires would endanger the lives and curtail the rights of the people living in the vicinity thus violating Article 9 of the constitution. The Supreme Court answered in the affirmative and held that the extensive and wide meaning to the word 'life' included all such rights which were necessary and essential for leading a free, proper, comfortable and clean life, and further that a person was entitled to enjoy his personal rights and to be protected from encroachments from such personal rights, freedom and liberties. The Supreme Court also held that any action taken which might create hazards of life would amount to encroachment on the personal rights of a citizen to enjoy the life according to law. In the circumstances the above action of the respondents not only violated the fundamental rights of the petitioner over his property as propounded in Article 9 of the Constitution but was also in violation of section 14 of the Wapda Act, 1958. The action of the respondents cannot by any stretch of imagination said to be proper and valid.
9. ' For the foregoing reasons and discussion, it was found that the constitutional petition has force and merited consideration. By a short order, dated 13-1-2005 it was allowed in terms of the prayers sought by the petitioner for the reasons to be recorded later. These are the reasons for the said short order.