' MUHAMMAD MUNIR KHAN, J.---This petition for leave to appeal which is directed against the judgment/order dated 3-10-1993 of the learned Division Bench of the Lahore High Court, Multan Bench, Multan, in Intra Court Appeal No,94 of 1993, arises from the facts that in the year 1965-66, old Grain Market, Bohar Gate, Multan, was shifted to Vehari Road where new Grain Market was set up.
Some of the shopkeepers refused to vacate their shops in old Grains Market or to shift to Vehari Road, so operation cleanup was taken and the shops were got vacated from them forcibly in 1977.
The Commissioner, Multan Division Multan had agreed to adjust the affectees of ..The clean-up operation in the new Grains Market and about 100 persons were accommodated in the new Grains Market in December, 1977. Thereafter it so happened that more than 200 persons encroached upon the land in new Grains Market and raised construction on the pieces of land occupied by them. The Market Committee, however, succeeded in demolishing the illegal encroachments in 1991. Out of the affectees, 166 persons were accommodated in the manner, that they were allotted plots on rent in the New Graips Market. Malik All Muhammad and 18 other affectees, including the petitioner, had occupied plots lying within the boundary of New Grain Market and constructed shops. The petitioner occupied pieces of land measuring 5.674 Marlas. The Market Committee (petitioner No,1) issued notices to them to vacate the land under their occupation. The aforesaid persons, except the petitioner, filed Writ Petition No,2095/1992 in the Lahore High Court, Multan Bench, Multan, seeking declaration to the effect that they were not encroachers and notices of vacation of land issued to them by the Market Committee, Multan, were without lawful authority and of no legal effect.
2. On 2-11-1992, during the course of hearing of the Writ Petition, parties arrived at mutual settlement and the High Court disposed of the Writ Petition with the observations that "by mutual consultation and perhaps very rightly so, it has been agreed that each petitioner shall henceforth become the tenant of the plot in his occupation under the landlord ship of respondent No,1. Those petitioners who are occupying the plots of the respondent in the front row shall pay a sum of Rs,600 as monthly rent each, while those who are occupying the plots in the second row shall pay the monthly rent of Rs,500 to respondent No,1. This agreement shall continue subject to the increase of rent as mutually agreed between the parties or in accordance with the rent laws. If any time respondent No,1 decides to raise its own structure on the plots in some more better form, the petitioners shall have no objection and they shall remove their structure in order to enable respondent No,1 to build its own. After the completion of new structures, respondent No,1 shall offer the plots again to the same occupants on such enhanced rates of rent as may be mutually agreed, or on market rate prevalent in the locality." (The respondent No,1 in that Writ Petition was the present petitioner No,1, i,e. The Market Committee and the petitioners therein were the affectees).
3. Feeling aggrieved by the notice of vacation Muhammad Sabir also filed writ petition, similar to the Writ Petition No,2095/1992 .Against the Market Committee, Multan and the Province of the Punjab (present petitioners), which was dismissed on 7-6-1993 on the grounds that Muhammad Sabir was prima facie encroacher and had come to the Court with unclean hands. Feeling aggrieved thereby, Muhammad Sabir filed an Intra-Court Appeal (No,94 of 1993) in the Lahore High Court, Multan Bench, Multan, which was allowed by the learned Division Bench on 3-10-1993 on the main ground that he (Muhammad Sabir) being affectee of clean-up operation launched by the Market Committee, Multan in the year 1991, stands at par to those who were accommodated by respondent No,1 (now petitioner No,1 before us) in terms of the order passed by that Court in Writ Petition No,2095 of 1992, therefore, he could not be treated step-motherly, particularly when his name is included in the list of the affectees of the cleanup operation.
4. Learned counsel for the petitioners has raised the following points before us:--
(i) That the respondent No,1 being an illegal occupant of the disputed plot which is a public property, was/is not entitled to equitable relief;
(ii) that the land in occupation of respondent No,1 earmarked as Gadda Khana could not be converted into a shop and given on rent to the illegal occupant thereof;
(iii) that the impugned order is likely to encourage the public to illegally occupy public property/land; and
(iv) that the impugned judgment also suffers from discrimination, in that, vide judgment dated 2- 11-1992 passed in Writ Petition No,2095 of 1992, the eighteen petitioners therein were given one Marla plot each, whereas the respondent is occupying 5.674 Marlas and that too near the office of the Market Committee, and vide impugned judgment it has been declared that he shall be treated tenant in the plot/shop in his occupation.
5. While supporting the impugned judgment, the learned counsel for the respondent has informed that Muhammad Azam, Muhammad Tufail and Azhar Rashid (petitioners in Writ Petition No, 2095 of 1992) were given plots measuring about 3-1/2 Marlas each vide judgment passed in Writ Petition No,2095 of 1992.
6. We have considered the arguments addressed by the counsel for the parties carefully. We find that Muhammad Sabir (respondent) is one of the affectees of clean-up operation taken by the Market Committee/petitioner No,1. His name appears at Serial No,13 in the list prepared by the Vice- Chairman, Market Committee, Multan and Sub-Engineer, Municipal Committee, Multan. 166 affectees of the clean-up operation were given alternative accommodation by the Market Committee/petitioner No,1 itself. 18 persons filed Writ Petition No, 2095 of 1992 in the High Court.
During the course of hearing, the petitioner No,1 agreed that each petitioner in the writ Petition shall henceforth become the tenant of the plot in his occupation. The Site Plan Marked 'A' shows that Muhammad Azam, one of the petitioners in Writ Petition No, 2095 of 1992 occupies about 3 Marlas of land and Muhammad Tufail, petitioner in that writ petition occupies about 3-1/2 Marlas of land at some distance from the plot/shop of respondent. We further find that the learned Division Bench of the High Court was very much impressed by the fact that the case of the respondent stands at par to those who were accommodated by the petitioner No,1 in terms of the order passed by the High Court in Writ Petition No, 2095 of 1992, therefore, he could not be treated step-motherly, particularly when his name was/is included in the list of affectees of the clean-up operation.
7. We do not see any valid reason to disagree with the view of the matter taken by the High Court in the impugned order/judgment. The respondent is a petty shopkeeper. He is the affectee of the clean-up operation. The petitioner No,1 itself had accommodated 166 affectees by allotting them alternative accommodation. At the time of hearing of the Writ Petition (No, 2095 of 1992) the petitioner No,1 had agreed to treat the petitioners in the writ petition as tenants of the land/plots under their occupation. So, the rule of consistency requires equal treatment with the respondent whose claim is identical to the claim of the petitioners in Writ Petition No, 2095 of 1992.
8. Be that as it may, the impugned order is a fair and proper one and has advanced justice between the parties. It is by now well-settled that before a person can be permitted to invoke discretionary Constitutional jurisdiction, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work injustice to any party, then the extraordinary jurisdiction ought not be allowed to be invoked. At the same time, we feel that the rule of consistency would also require that the respondent should not be allowed to retain area more than the area of the petitioners in Writ Petition No, 2095 of 1992 and the respondent should be treated tenant on the same terms and conditions as stated in the order passed in Writ Petition No, 2095 of 1992.
9. For all these reasons, leave to appeal is refused with the observations that Muhammad Sabir (respondent) will be treated tenant of the plot measuring 3-1/2 Marlas only on such a rate of rent as may be mutually agreed or on the market rate prevalent in the locality. If, any time, the petitioner/Market Committee decides to raise its own structure on the plot in some more better form, the respondent shall have no objection and he shall remove his structure in order to enable the petitioners to build their own. After the completion of the new structure, the petitioner shall offer the plot again to the respondent on such enhanced rate of rent as may be mutually agreed, or on market rate prevalent in the locality. The respondent shall vacate the excess area of the plot/shop in his occupation within two months.