1. ' The petitioners through this Constitutional petition have prayed that the respondents be restrained from interfering in their possession of shops/khokhas where they are carrying on their business for the last many years with a further prayer that they be also directed to give them alternate accommodation in case of their dispossession in the terms of the agreement earlier reached on 21-2-1992 between ADC(G) and Anjuman Tajran, Jail Road, Lahore.
2. ' Facts briefly for the disposal of this Constitutional petition are that the petitioners are having their business on the Jail Road, Lahore and have set up shops/stalls over there. According to them, prior to the Islamic Summit Conference held in the year 1974, they were having khokhas and small shops at various places in the city of Lahore. The then Chief Minister Province of the Punjab directed the respondents functionaries to accommodate them at certain places in the City so as to provide pleasant and better look to the foreign dignitaries at the time of the aforesaid Conference. They were accordingly accommodated alongwith the boundary wall of the then Mental Hospital and Services Hospital, Lahore where small shops/khokhas were set up by them.
3. ' Argument has been advanced that the respondents functionaries have embarked upon their dispossession without providing any opportunity of hearing. A further argument has been advanced that unless and until they are provided alternate places as agreed earlier, they cannot be evicted from their shops/khokhas. In support of his contention learned counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court reported as 'Mrs. Anisa Rehman v. P.I.A.0 and another' (1994 SCMR 2232) wherein learned Judges have referred to Indian Supreme Court case titled'Olga Tellis and others v. Bombay Municipal Corporation and others' (AIR 1986 SC 180) which is as under.
4. ' "Olga Tellis and others v. Bombay Municipal Corporation and others (AIR 1986 SC 180) in which the Indian Supreme Court while construing Article 21 of the Indian Constitution pertaining to the right of life held that the Article was to be viewed in conjunction with Article 39 (a) and 41 relating to State Policy requiring the State to secure to the citizens as adequate means of livelihood and the right to work and that eviction of pavement dwellers and slums will lead to deprivation of their livelihood and consequently to the deprivation of life or personal liberty in terms of the above article. It was further held that though under section 314 of the Bombay Municipal Corporation Act, 1886 the Commissioner had the discretion to cause an encroachment to be removed with or without notice, that discretion is to be exercised in a reasonable manner so as to comply with the Constitutional mandate. It was also held that the pavement dwellers were entitled to be heard before they could be removed."
5. ' Learned Advocate General appearing for the respondents has stated at the very outset that the petitioners from their very inceptions were illegal encroachers as they occupied State land without any sanction of law. This illegal act on their part caused great hindrances for the public at large as it was a traffic hazard. The respondents took a benevolent step and accommodate the encroachers alongwith the boundary wall of the Services Hospital and the then Mental Hospital, Lahore. According to him at the site of the then Mental Hospital Lahore, now Punjab Institute of Cardiology has been set up which caters the need of great number of heart patients from all over Pakistan. He has further stated that alternate place for these encroachers has already been earmarked near the Canal Bank, Lahore, where most of the encroachers who were having their business have already shifted. However, the petitioners are creating hindrances in their removal and have caused tremendous hazard and difficulties not only for the patients but also for the public-at-large who have to visit the Punjab Institute of Cardiology. He has also Stated that the precedent quoted by the learned counsel for the petitioners from the Indian Supreme Court is not attracted to the facts of the present case as in that case too, the Indian Supreme Court after hearing the encroachers directed their removal. It was observed that they be provided not as a condition precedent to their removal, alternate place considered reasonable by the Government.
6. In support of his contentions learned Advocate General has placed reliance upon Olga Tellis and others v. Bombay Municipal Corporation and others (AIR 1986 SC 180); Municipal Corporation of Delhi v. Gurnam Kaur (AIR 1989 SC 38), Ch. Muhammad Bakhsh v. Government of Punjab (PLD 1989 Lahore 175), Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166) and Messrs Elahi Cotton Mills Limited and others v. Federation of Pakistan etc. (PLD 1997 Supreme Court 582).
7. I have considered the contentions. It is reflected from the aforesaid resume that the petitioners were encroachers from the very beginning. However, they were accommodated alongwith the boundary wall at the then Mental Hospital (Punjab Institute of Cardiology) in the year 1974 at the time of holding of Islamic Summit Conference at Lahore. They are merely licensee and have got no vested right to claim perpetuity over their possession. Even otherwise, no person has right to encroach upon the State land by creating an illegal structure or otherwise creating any hindrance for the general public. As already stated the shops/khokhas established beside the wall of Punjab Institute of Cardiology are not only causing tremendous hazards to the pedestrians as well as public at large but have also marred the utility of the Cardiology Institute as the patients have got no direct access/entry from the main road. Mr. Y.V. Chandrachud the then Chief Justice of India, the author of AIR 1986 SC 180 (supra) held in AIR 1985 SC 1206 Bombay Hawkers' Union and others v.
8. Bombay Municipal Corporation and others' as under.
9. ' "No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public Streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them. They could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets property so-called."
10. (underline is mine.)
11. ' Reliance is also placed on Municipal Corporation Delhi v. Gurnam Kaur' (AIR 1989 SC 38) where the learned Judges not only quoted the above paragraph of the then learned Chief Justice Y.V.
12. Chandrachud but also further held as under: "We find it rather difficult to sustain the judgment of the High Court. The learned Judges failed to appreciate that this Court in Jumna Das'case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. Contrary to section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, foothpath or pavement. That, apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act, section 320 (I) in terms creates a statutory bar against illegal encroachment on any portion of a public street. It provides that no person shall except with the permission of the Commissioner granted in this behalf, ercet or set up any booth or other structure whether fixed or movable or whether of a permanent or temporary nature or any fixture in or upon any street etc. Having regard to this express provision the High Court failed to see the respondent Gurnam Kaur had no legally enforceable right to the grant of a writ or direction in the nature of mandamus. The High Court could not obviously issue any such direction which would be tantamount to a breach of the law. Furthermore, the High Court could not also make the impugned direction in view of the provision contained in section 322(a) of the Act which expressly confers power on the Commissioner to cause the removal of any structure which constitutes an encroachment on a public place like a street which is meant for the use of the pedestrians."
13. ' The Indian Supreme Court in the aforestated precedent cases has never conceded any right to the encroachers to raise any construction upon the public land which they have encroached upon.
14. As already mentioned in AIR 1985 SC 1206 Bombay Hawkers Union case learned Judges have gone to the extent in observing that if hawkers were to be conceded the right claimed by them they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. In the light of the above quoted judgment it can be safely stated that the petitioners have got no vested right to claim perpetuity over the possession which was provided to them as licensee on compassionate grounds. They do not have any right to do their business so as to cause nuisance, annoyance or inconvenience to the other members of the public when the government has decided to give them alternate place. Apart from this there is another aspect of this case which cannot be lightly ignored. The removal of the petitioners from their shops to the alternate place at Canal Bank would not only be beneficial to the patients visiting the Punjab Institute of Cardiology but also to general public. With their removal, a direct approach from the main road would be available to the Institute which would go a long way in improving the outlook as well. The congestion and hazards created by the petitioners at the outer wall of the Institute has also polluted the atmosphere of the area. In these circumstances, since the removal 'of the petitioners would be beneficial to the majority of the people as such in the circumstances preference would be given to the public interest over the interest of the present petitioners. In this respect I am fortified by a case reported in Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166) where at page 194 it was held as under: ' "The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought to be remedied. It will be settled that individual interest must be subordinated to the collective good. Therefore, we refrain from granting consequential reliefs, inter alia, the restoration of the National Assembly and the dissolved Federal Cabinet."
15. ' Reference is also made to Ch. Muhammad Baldish v. Government of Punjab and others (PLD 1989 Lahore 175) where at page 182 it was held as under:-- "I permitted some debate as to desirability of the petitioner going back to his seat. Actually, I allowed time to learned counsel for the respondents to brood over the matter and even get instructions lest it may involve elements of being prejudicial to public interest which, in my view, must ordinarily reign supreme over an individual's interest. The petitioner has himself come out with a voluntary statement that he is not keen to meddle with the affairs of the Board and he is satisfied with the relief that he may obtain in accordance with law and he would desist from, in any manner, putting into peril the conduct of the examinations or the secrecy in respect thereto".
16. ' Reference is also made in Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) wherein it was held as under: ' "Additionally, while examining a fiscal statute the Court should not be carried away with the fact that the same may be disadvantageous to some of the tax-payers. If such a fiscal statute is beneficial to the country on the whole, the individuals' interest should yield to the nationals interest."
17. For what has been stated above, this writ petition is disposed of directing the petitioners to vacate the premises by shifting to the alternate place stated by the learned Advocate-General within three months up to 31-8-1998. For this purpose they should approach the respondent functionaries without waste of time. Thereafter, respondents would be well within their right to remove them in ' accordance with law. There shall be no order as to costs.