TARIQ MAHMOOD, J.--- By means of this judgment we intend to dispose of Constitutional Petitions Nos. 171 of 2000, 16, 44 and 49 of 2001.
Petitioners in Constitutional Petition No. 171 of 2000, sought following relief:-- "It is, therefore, humbly prayed that this Honourable Court may be pleased to accept the petition, in following terms:-- A.- Declaring that the act of respondents in not allowing the petitioner to opt for purchasing the land in their occupation, as per the decision taken by the Government of Pakistan, Ministry of Railway, by means of letter dated .24-1-2000, whereas granting such facility to the illegal occupants of other parts of Baluchistan, such as Sibi, Harnai, Mach, Sharig, Kolpur is totally discriminatory, against the provisions of Constitution of Islamic Republic of Pakistan, 1973.
B. Directing the respondents to allow the facility of purchase of land in their occupation, before their dispossession, as per the policy of the Government of Pakistan, contained in the letter, dated 24-1- 2000.
C. Any other relief deems tit and proper in the circumstances of the case may also be awarded, alongwith the cost of petition, in the interest of justice."
As additional relief has been sought in remaining petitions, therefore, it would be appropriate to reproduce the same, as well:-- A. Declaring that the intended action of demolishing the Katcha' houses in occupation of petitioners and notices issued by the respondents to the petitioners for vacation of the Katcha houses, situated on Railway Land at Zarghoon Road, Joint Road etc. Is based on mala tides, in violation of the recent policy of the Railway Department (Annexure 'H'), a premature act and thus, is totally without lawful authority and jurisdiction as well as of no legal consequences."
Petitioners claim that they are retired employees of Pakistan Railways or their families. It is their case that after retirement or death of employees, facility of official accommodation was withdrawn from them and having been left shelterless, they occupied open spaces lying in Railway Colonies commonly known as Babu Muhalla, Loco Shed Colony, Firemen Colony, Traffic Colony, Guard Colony and Birginza Colony situated at Joint Road, Brewery Road and Zarghoon Road, Quetta. It is their case that they are in occupation of these properties since long. It is also their case that they were under the impression that ultimately the property would be leased out to them. It appears that respondents decided to clear the encroachments specially for the reason that they also occupied open bits of left by town planner for the purpose of proper ventilation, sun-shine and free rescue operation. Also open spaces left with the view to future extension of Railway accommodation have also been occupied. It appears that when under the instructions of Federal Government, the action of removal of encroachments from Railway land was initiated, some of the encroachers approached this Court through Constitutional Petition No. 1120 of 1999 and sought Injunction against the respondents. Railway resisted the petition on the ground that they are land grabbers. It also appears that realizing the fate of the case, petitioners did not press their claim but accepted the offer of Railway for grant of time to remove encroachments keeping in view the winter season and holy month of Ramazan. It is important to point out that respondents filed list of unauthorized occupants in order to show that no discrimination was .Being done against the said petitioners. In this background the said petitioners even tiled a written undertaking that they would vacate the premises in their occupation and shall remove the unauthorized construction and hand over its vacant possession to the Railway administration by or before 15th March, 2000. As the petitioners in said petition were very few in numbers as compared to illegal occupants, therefore, a publication was also made in the newspaper calling upon encroachers, if they were interested to avail the facility of enjoying peaceful possession of premises in their respective possession upto 15th March, 2000. In response to order passed by this Court and publication made, number of unauthorized occupants came forward and showed their willingness to avail the facility. Judgment in Constitutional Petition No. 1120 of 1999 reveals that 1242 unauthorized occupants out of 1641, as per list of Railway, filed undertaking that they would not only remove unauthorized construction but hand over possession of vacant site by or before 15th March, 2000. Another 49 unauthorized occupants, whose names did not find jinention in the list provided by Railway but otherwise were in unauthorized possession of Railway Property also voluntarily came forward and tiled similar undertaking. It has also been pointed out that perhaps even after the disposal of petition certain other persons had also tiled the undertaking. In these circumstances the petition was disposed of vide order, dated 11-12-1999, with clear understanding that they would vacate the property by or before 15-3-2000. Concluding para. Of order is reproduced -for proper appreciation:-- "Thus, with the above observations, petition is disposed of with clear directions to the persons who have furnished undertakings to deliver peaceful possession of properties, shops, residential houses, plazas, etc. In their possession on or before 15-3-2000, failing which action against them for non- complying with the judicial order shall be taken in accordance with law. Thus, the petition stands disposed of."
The petitioners are the persons, who either filed the said petition or in response to notice published in newspaper came forward and filed the undertaking. However, on the expiry of aforementioned period instead of removing the encroachments and vacating the property, they filed this petition chiefly on the ground that subsequently Federal Government took a policy decision as reflected from letter, dated 24th .March, 2000, issued by Secretary/Chairman Railway, to offer for sale the properties in possession of encroachers, and therefore, they cannot be dispossessed. The petition came up for hearing on 15th March, 2000 and while issuing pre-admission notice to respondents, status quo was directed to be maintained. , Respondents filed their counter-affidavit and took the position that the case of petitioners is not covered by the letter under reference, the same does not create any right in favour of petitioners and in any case earlier an undertaking was given by the petitioners that by specific date they will vacate the premises in their respective unauthorized occupation, therefore, the petition is not maintainable.
Syed Ayaz Zahoor, learned counsel has appeared on behalf of all the petitioners and argued as follows:--
1. That though they occupied the property in their respective possession without any title and also gave undertaking to vacate the property in pursuance of order passed in Constitutional Petition No. 1120 of 1999, since subsequently Government announced a fresh policy as reflected from letter, dated 24th January, 2000 in respect of removal of encroachments on Railway lands, therefore, they cannot be dispossessed.
2. That respondents in view of aforementioned policy are under legal obligation to offer them land in their occupation for sale. It has been submitted that similar concession is being given to illegal occupants of Sibi, Harnai, Sharig and Kolpur, and therefore, petitioners are being discriminated.
3. It has also been submitted that action is being taken only against residential properties and not against encroachers of commercial properties, which reflects mala fide of respondents.
Mr. H. Shakeel Ahmed, learned counsel for respondents on the other hand has contended as under:--
1. That the petition is hit by principle of estoppel/acquiescence/waiver, in that in Constitutional Petition No. 1120 of 1999, they alongwith many other persons had given undertaking before this Court to vacate the property encroached upon by them.
2. That the petitioners have no vested right to claim allotment or sale of property.
3. That the petitioners have not approached this Court with clean hands.-
4. That the case of petitioner is not covered by letter, dated 24th January, 2000 and in any case same does not create any right in favour of petitioners and further that Government of Pakistan has not so far decided to sell the land to any person.
5. That writ of mandamus directing the respondents to allow the petitioners to continue the illegal occupation cannot be granted.
6. That nobody is being discriminated and action is being taken under a uniform-policy.
Mr. K.N. Kohli, learned Deputy Attorney-General in addition to submissions made by Mr. H. Shakeel Ahmed, added that the prayer made in the instant petitions can neither be called as mandamus or certiorari, and therefore, no writ can be issued. Also that present petition is barred on the principles of Order 2, Rule 2, C.P.C. And res judicata.
Before dilating upon the respective contentions of learned counsel for the parties, we felt it appropriate to dispose of the objections raised by the learned Deputy Attorney-General about the nature of writ asked. For and regarding res judicata under Order 2, Rule 2, C.P.C.
It may be seen that if any act done or proceedings are taken without jurisdiction or in excess of jurisdiction, such act or proceedings can be declared without any legal effect and writ of certiorari can be issued and a certiorari will be only after the proceedings have resulted in an order.
Whereas; mandamus literally means a command and it differs from the writs of certiorari in its demand for some activity on the part of the body or person to whom it is addressed, for the performance of public duty. Writ of certiorari is a right of declaring that something done by respondents is without lawful authority and of no legal effect. Whereas; in the writ of mandamus it - is necessary that the law should impose on the officers concerned a duty to do what they are refusing or, omitting to do. Further delay in performance of a duty amounts to not doing something required by taw. In the instance petitions the case set up by the petitioners is that there is a policy decision by the*Federal Government and the respondents are under a legal duty to decide their case under the policy and offer the property for sale and which they are omitting to do. Subject to other conditions, if petitioners succeed, writ of mandamus can certainly be issued. Now INK for other objection, suffice it to say that same is also not tenable in view of pleas now raised in the petition. It may be explained that grievance of petitioners is regarding the events occurred after the disposal of Petition No. 1120 of 1999.
It is the case of petitioners that after passing of judgment in Constitutional Petition No.1120 of. 1999 on 11th December, 1999, Government of Pakistan framed a new policy in respect of removal of encroachment on Railway .Land and as per spirit of policy as contained in Ministry of Railway's letter, dated 24th January, 2000, they are entitled to grant/lease of land. The said letter reads as under:-- Government of Pakistan Ministry of Railways No. W-II-98-LA9 Islamabad the 24th January, 2000.
Subject: Removal of encroachments on Railway land.
The following action in regard to illegal encroachments on Railway land may be taken,-
(i) . All the clustered Katchi Abadis for which no objections were granted by Railway Administration under the Katchi Abadis Scheme of the Government launched in 1986 may be offered land under their occupation for sale on market price of the area. Other large Katchi Abadis where eviction is not possible may also be considered for same treatment on case to case basis where the land under occupation is not of operational or commercial necessity for Railway. A committee comprising Director Land Management (Convenor), Divisional Superintendent concerned and F.A. & C.A.O. Will determine the market price and conditions of sale/transfer.
(ii) All individual, scattered and dispersed encroachments on the Railway land must be cleared without discrimination whether occupied by Railway employees or outsiders.
(iii) All additions to official quarters be allowed to stay provided these are safe. These will transfer to new allottees of such quarters without payment/claim.
(iv) All encroachments in commercial areas must be cleared.
(v) Commercial leases granted in the past where rent is not paid will be cancelled unless renewed on payment of outstanding dues up to 30-6-1999 on market rates as revised from time to time.
(vi) Commercial plots/Khokha shops allotted to widows of Railway employees in the past may be ,regularized on payment of necessary dues if widows are alive but will be repossessed if she has died.
(vii) Any other encroachment in the block sections or stations areas required for operational requirement must be cleared.
2. Division Superintendents will use Railway Police and Civil Administration/Police for accomplishment of the above task after coordination with Civil Authorities. A fortnightly progress report may be submitted for my information."
Accordingly, the petitioners have prayed that the act of respondents in not allowing them to opt for purchase of land in their occupation is illegal and contrary to the aforementioned policy. However, the stand of respondents is that instructions laid down in the letter are meant only for Katchi Abadis, declared during 1985. Also that no Katchi Abadi has been declared throughout Baluchistan and as the encroachment caused by the petitioners are scattered and isolated, these encroachments do not even fall under the definition of clustered Katchi Abadi. And that same is equally not applicable to the land grabbers at Sibi, Mach, Kolpur, Harnai and Sharig, but the petitioners have prepared these fictitious documents with a view to make basis for filing of this petition.
A perusal of above quoted policy letter reveals that it is applicable to all the clustered Katchi Abadis for which no objections were granted by (lie Railway under the Katchi Abadi Scheme of the Government launched in 1985. It is the case of respondents that the encroachment-in-dispute are not a clustered Katchi Abadi but scattered and isolated. It is further their case that petitioners have raised unauthorized construction within residential colonies, such as improvised construction of rooms inside, over or alongside the residential units, constructions on streets, passages, etc., constructions of shops in residential units. It has also been explained that during the course of construction of Railway Colony, Babu Muhalla, Loco Colony, Firemen Colony, Guard Colony, Traffic Colony and Birginza Colony, situated at Joint Road, Zarghoon Road and Brewery Road, open bits of land were left by Town Planners with a view to provide proper ventilation, sunshine and for rescue operation. But the petitioners and others unauthorizedly encroached upon the same without any lawful authority, effecting security, safety. Sanitation and hygienic conditions of the colonies. It has also been pointed out during arguments that smooth running of the traffic has been effected as encroachments have been made on either side of the road, thus, narrowing down of the lanes/passages. Also that no Katchi Abadi has been declared all over Baluchistan and particularly in Quetta Division. And in any case, Government has not so far decided to sell the property. The petitioners have neither denied the stand of respondents in counter-affidavit by way of filing some rejoinder nor brought on record anything to the contrary, and therefore, we have no option but to conclude that encroachments are neither clustered Katchi Abadis nor any N.O.C. Was ever issued and for such reason letter, dated 24th January. 2000 is not applicable in their case. Another category of Katchi Abadi mentioned in latter is where eviction is not possible. But since in the present case, almost all the encroachers had already filed undertaking to vacate the property by or before 15th March, 2000, which was made basis of order passed in Constitutional Petition No. 1120 of 1999, therefore, case of petitioners is not covered even under that category, particularly when individual, scattered and dispersed encroachments are required to be cleared. This is also-not spelt out from the policy/instructions that automatically every unauthorized occupant, has a right to purchase the property. This issue can be attended from another angle i.e. When a policy or direction is given for guidance to the officers of a department without any statutory backing, no claim of' vested right can be based on such policy or direction or instructions, particularly when the case of respondents is that petitioners do not belong to thin category of unauthorized occupants to whom property can be offered for sale. And to the contrary it has been specifically stated in the letter that all individual, scattered and dispersed encroachments must be cleared.- Adverting to the learned counsel for petitioners' contention that they are being discriminated, it may be stated that it is the stand of petitioners even in this petition (ground "C") that "they are ready and prepared to abide by order of this Court (passed in C.P. No.1120 of 1999) and are not reluctant in any manner to hand over the possession" but the ground of discrimination pleaded in the petition is that as subsequently a policy decision was taken by the Government in respect of removal of encroachment, therefore, they deserve equal treatment. We have already held that case of petitioners is not covered by the said instructions/policy. However, the learned counsel for petitioners during the course of arguments highlighted another type of discrimination. According to him, Railway has taken a policy decision for removal of encroachment but instead of starting removal of commercial encroachments at the first instance they proposed to take immediate action against petitioners. He insisted that Railway Administration is under legal obligation to remove all the encroachments on Railway property (including, petitioners) and as the same is not being done, therefore, they are being discriminated. It would be relevant at this stage to reproduce the details of unauthorized encroachments on Railway property at Quetta and policy decision for its removal:-- "
1. That the encroachment and unauthorized construction on Railway lands at Quetta is of the following types--
(a) Unauthorized constructions, within residential Railway Colonies, such as improvised construction of rooms inside, over or alongside the residential units, constructions on streets, passages etc., construction of shops in residential units.
(b) Construction of shops on main Joint Road, Brewery Road and Zarghoon Road, without any planning, with and without permission but having commercial value.
2. That the construction and encroachment in residential area is intended to be removed extensively and without any reservation.
That as regards construction or encroachments on commercial roads, the same has been decided to be stream lined and proper planning is to be done, so that the property or area is made available on commercial basis in order to fetch maximum revenues for which following policy is proposed to be followed--
(i) The shops which have been given on lease through agreement in the past for which proper agreement has been signed at the old rate, it is proposed to sign fresh lease agreement for these shops at the present market rates.
(ii) Those persons with whom proper lease agreement was made in the past but who have encroached land over and above the authorized limits and such encroachment does not pose any traffic hazard will be asked to pay lease rent of the present market rates. Those persons who have made illegal additions in a haphazard manner to the shops allotted to them and which are causing hindrance in smooth running of traffic will be asked to remove such encroachments and bring the shops in the original shape and fresh agreement will be signed on new rates. In case of their refusal such encroachments will be removed.
(iii) Those shops which have been constructed unauthorizedly would be demolished and such sites would be put to open auction for the purpose of getting a premium. Railway shall construct shops from the amount received as premium and will offer them to the highest bidder on lease initially for 10 years which would be extended by another 5 years with 25 % escalation in rent every after three years.
Brief on Railway's policy regarding removal of encroachments on Railway land
1. All encroachments on railway land needed for operational purposes will be removed at priority.
The encroachments made within the official Railway. Colonies will be removed without any discrimination. These encroachments are creating hindrance in smooth and proper sanitation/hygienic maintenance, rescue operation if required in case of tire or emergency etc.
3. Commercial land (original allottees of Khokha shops).--- The Railway land which was leased out as Khokha shops to retired Railway employees as a Welfare measure and subsequently to their widows, rent from them will be charged as per present day rate. In case of death of widow also, the land will be retrieved. The existing holders of shops have been told to make payment of rent as per revised rate and new lease will be signed. However, Railway reserves the right to cancel the lease on three months' notice.
4. Illegal occupants.--- The illegal encroachers have occupied Railway land for decades and have constructed shops without paying any rent to Railways. This land will be retrieved to be used subsequently by Railways on commercial lines to earn revenue for Railways. However, if such encroachers are willing to give rent of previous 15 years on a sliding scale of 5 years bracket and are also willing to pay the annual rent at the current -- market rate mutually agreeable between Railways and encroachers, they will be allowed to continue business for a period of 10 years initially, extendable by another 5 years. The rent shall be subjected to 25% increase after three years. The shop shall remain the property of, Railways. However, the shops once leased out can be retrieved if required by railway after giving three months' notice. In case of refusal of the policy, the shops will be demolished and the area will be retrieved for making Railway Markets and the shops in the markets will be rented out subsequently through auction of premium initially for 10 years extendable for further five years."
The principle of equity before law have been enunciated in various reported cases. On assessment of various authorities the main principles governing the equity clause were enumerated by Ajmal Mian, J. (as his Lordship then was) in I.A. Sherwani's case 1991 SCM R 1041 as follows:--
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different, financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in particular set of circumstances may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both privileges conferred and liabilities imposed
(vii) that in order to make a classification. Reasonable, it-should be based,
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
Applying the above principles, we are of the view that the policy decision/action taken by the Railway is based upon justifiable classification having rationality and nexus with the main purpose.
Settled law is that where classification has been made as a class from the other one, which falls within a different class, then the question of discrimination will not arise. It may be added that as large number of encroachments are involved, therefore, it was not easy for Railway to deal with the situation. As per record, initially even Deputy Commissioner, Quetta expressed his inability to maintain law and order situation, on which the encroachments were to be removed. However, subsequently Provincial Government has accorded due assistance. In the peculiar circumstances of the case if a policy has been made without any pick and choose, no exception can be taken. It may be stated that case of petitioners falls under para. 1(a) and they are to be dealt with under para.2 of above quoted type of encroachment. This classification by no stretch of imagination can be treated as unreasonable, particularly when the petitioners are the persons, who appeared in Court and filed undertaking that they would by themselves remove the encroachments caused or made by them or on their behalf by or before 15th March, 2000 and more particularly when it has been decided that all the encroachments within the official Railway colonies will be removed without any discrimination. Even otherwise an encroacher cannot be allowed to protect his illegal act on the ground that similar action is not being taken against another encroacher. Guarantee is of equal protection of law and not protection of an illegal act. Syed Ayaz Zahoor specifically and repeatedly quoted the instance of a petrol pump, against whom no action is being taken. But Mr. H.
Shakeel Ahmed made' a statement a bar that an Injunction has been issued by learned Civil Judge-IV, Quetta.
There is yet another aspect of the case. Admitted feature of the case is that petitioners are encroachers. Respondents initiated action of removal of encroachments from Railway property in 1999. Some of the encroachers filed Constitutional Petition No. 1120 of 1999 in this Court and challenged the action of respondents took the stand that occupation of the property by the said petitioners and others was unauthorized and that petitioners were not entitled to any relief to perpetuate their ill-gotten gains. However, the Railway Authorities taking into consideration hardships of occupants and purely on humanitarian grounds, particularly keeping in view winter season and the holy month of Ramazan agreed to allow them some time. It appears that smelling the fate coon, they accepted the offer and agreed to vacate the property.
After considering the respective contentions of parties and concession given by respondents, unauthorized occupants were allowed time to vacate the property up till 15th March, 2000, subject to filing of undertaking. It was also decided that encroachers, who though had not tiled the petition, wanted to avail the facility should also submit undertaking. As the unauthorized occupants were numerous in number and it was not possible to serve each of the encroachers, therefore, a publication was also made in the newspaper. In response whereof, 1242 (including petitioners) out of 1641 encroachers tiled undertaking that they would vacate the property in their respective possession by or before 15th March, 2000, failing which respondents would be at liberty to forcibly dispossess them. Another 49 persons, who were also in possession of Railway property tiled similar undertakings. It would be profitable to reproduce the specimen of undertaking:- "Undertaking; I________son of/daughter of____________. Resident of Railway Colony, (bearing N.I.C.
No._________) do hereby voluntarily undertake as under--
1. That the undersigned is in occupation of piece of land measuring_________sq.Ft. Situated at__________Colony over which improvised construction has been raised, which is being demolished/removed by the Railway Authorities with the help of District Administration, Quetta.
2. That the undersigned shall vacate the premises in his/her occupation and shall remove the unauthorized construction and hand over peacefully its vacant possession to the Railway Administration by or-- before 15th March, 2000.
3. The undersigned shall not raise any kind of construction over the said property/land and shall not interfere in the removal of the debris of such encroachments which have already been demolished. This undertaking shall be binding upon all of our relatives, heirs and legal representatives acting on my behalf in any capacity including any other occupant of the premises in any manner.
4.That in case if I fail to hand over peaceful, vacant possession of the piece of land within the stipulated time; the Railway Authorities shall be free to demolish the area of land whether constructed or otherwise without any notice or intimation.
Occupant.
Dated.___________Occupant No.______________N.I.C.
Identified by me--------- However, after enjoying the period upto 15th March, 2000, instead of vacating the property, Constitutional Petition'No.171 of 2000 was filed on 15th March, 2000 and proposed action of respondents was challenged. While admitting the petition, status qua was also ordered, which subsists till today. It was followed by filing of three connected petitions.
Now it is important to point out at this stage that jurisdiction of this Court, which petitioners seek to invoke is discretionary and equitable in nature and one of the recognized principle on the basis of which interference can be refused is the conduct of the petitioners, which must be such as to disentitle them to the grant of relief. It is also settled principle of law that Constitutional jurisdiction can be exercised in favour of persons, who tome to Court with clean hands and abide by their commitment or Court directions. The petitioners did invoke the jurisdiction of this Court in the last round of litigation, got some time to enjoy winter season and holy month of Ramazan but then did not abide by their commitment/undertaking. So, the petition is also liable to be dismissed on this ground.
It may also be stated that object of Article 199 is to protect legal, inalienable and fundamental rights of a person, and therefore, the Court is obliged to perform the above obligation, on the one hand, but on the other hand, the High Court has to conform with' limitations provided under Article 199 and other related Articles. Now admitted feature of the case is that petitioners are encroachers/land grabbers. It is the case of respondents that the petitioners are land grabbers and have encroached the Railway land unlawfully, unauthorizedly, forcibly and deliberately. Further that the land in dispute was left open for the enjoyment of residents of Railway Colony but the same has been illegally encroached upon and these encroachers are creating hindrance in smooth and proper sanitation/hygienic means, rescue operation if required in case of tire or emergency etc. Admittedly the petitioners have no right under the law to protect their illegal and unauthorized occupation, so no writ can be issued in favour of trespassers or against law. As the petitioners are admittedly unauthorized occupants of Railway property, therefore, they are not entitled for the equitable relief, in that, equity does not lie in favour of trespassers. Honourable Lahore High Court in case reported as Malik Ghulam Mustafa Khar v. Pakistan PLD 1998 Lah.
49. In somewhat different circumstances observed on this point as under:-- "Article 199 of the Constitution casts an obligation on .The High Court to act in aid of law, protecting the rights of the citizens within the frame-work of the Constitution against the infringement of law and Constitution by the Executive Authorities, strike a rational compromise and a fair balance between the rights of the citizens and the action of the State functionaries, claimed to be in the larger interest of Society. This power is conferred on the High Court under the Constitution and is to be in the larger interest of Society. This subject to Constitutional limitations."
An order in the nature of writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person' can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not cause any injustice to any patty, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be invoked. It has been stated in Halsbury's Law of England, third Edition, Volume II; at page 106 "the Court will not, by mandamus, order something, which is impossible of performance by reason of the circumstances that the doing of the act would involve a contravention of law" nor will a mandamus issue "in order to effect what amounts to an evasion of a statute". The principle that no writ can be issued to promote injustice is being consistently followed by the Superior Court of Pakistan. Honourable Supreme Court in case reported in 1986 SCM R 1561 held as under:--- "Undoubtedly, the Constitutional jurisdiction under Article 199 of the Constitution is discretionary.
Even when an order impugned before High Court is found to be lacking in some legal, or jurisdictional requirement, the Constitutional provision does not compel the High Court to issue a writ muchless that of certiorari or mandamus. The merits of the case have also be considered in order to examine whether the discretion is to be exercised or not in favour of the party successfully challenging the legality of the order impugned in writ jurisdiction. If the result is that by setting aside such an order another order- would be revived which is unjust or unfair or is otherwise also illegal, then before setting aside the first mentioned order the Court will have to examine more carefully the question of exercise of discretion and in proper cases would decline to exercise the discretion and would thus, not set aside and order even if it is illegal provided the setting aside of such an order would result, inter alia, in injustice or revive another illegal order."
Also that writ of mandamus is not a writ of right, therefore petitioners must show a legal right which existed in their favour anti corresponding legal duty is imposed upon the Public Officer or the Authority for issuance of a direction in the nature of mandamus. It may be stated that the Honourable Supreme Court refused to issue writ of mandamus in the case of Civil Judges-cum- Judicial Magistrates, who were appointed on contract only. They wanted their appointment regularized through issuance of writ of Mandamus. The Honourable Supreme Court concluded its findings as under-- "We have gone through the impugned order and have given due consideration to the contentions urged before us. The learned Judges of the High Court were right in observing that appointment of the petitioners on contract basis furnished no legal right on them to seek appointment on regular basis. No legal right admittedly flows from the appointment made by the Government and accepted by the petitioner and as such no duty was cast on the respondents/Government to appoint the petitioner as Civil Judges-cum-Judicial Magistrates on regular basis. A writ in the nature of mandamus is not a writ of course or of right. It cannot be claimed as a matter of right.
There must be a legal right existing in the petitioners and corresponding legal duty imposed upon the public officer or the authority for issuance of a direction in the nature of mandamus. Learned Judges of the High Court were, therefore, right in observing that issuance of direction prayed for would be violative of law namely, section 7 of the N.-W.F.P. Public Service Commission Ordinance, 1978 read with 'the Rule 3 'and Schedule ' A' of the N.-W.F.P. Public Service Commission, (Functions)
Rules, 1983 which prescribe that appointments to the post in the Province in B.P.S.-16 to 20 are to be made on the advice of the Public Service Commission, based on the test and examination conducted by the Commission for a purpose, and that the posts held by the petitioner being in B.P.S.-17 can only be filled up in the manner prescribed in law. The concept of independence of judiciary does not make the judiciary above the law. Rather, obedience to law and strict adherence thereto by the judiciary will ensure its independence and enhance its prestige. Moreover, only such recommendation will be meaningful and effective which is made in accordance with law and not which will be violative of the law or which will have the effect of frustrating the law. The appointments are to be made by the authority with which such power vests in the manner provided by law and not otherwise. The observation made in the Judges' case (supra) cannot be made a basis for violating the law or for acting in violation of law. For the reasons given above, we find no force in the petition. Leave to appeal is, therefore, refused and the petition is dismissed."
Applying the above principles, it may be seen that petitioners have got no vested right to claim perpetuity over their possession. Further, no person has right to encroach upon the State land by creating an illegal structure or otherwise creating any hindrance for the general public or the residents of colony. It is the case of respondents that very few petitioners are the retired Railway employees or their families. It has been pointed out that actually they are the land grabbers who leased out the valuable property of Railway and took undue benefit illegally and unlawfully. They have created an unhygienic situation and Railway employees residing in the colonies are facing difficulties and inconvenience and also filed number of complaints to the authorities concerned about the illegal activities by these land grabbers in the encroached property. It has also effected smooth running of the traffic in the colony. The petitioners cannot be allowed to cause annoyance or inconvenience to the genuine residents of the colony or to deprive hygienic atmosphere for which they are legally entitled. Preference should be given to the genuine and legal residents of the area over the petitioners, who are admittedly unauthorized occupants. Nobody can be allowed to protect encroachments on any public street, footpath or pavement or area left and found necessary for healthy living of life. Tress-passers cannot be allowed an equitable relief.
Few words about Petition No.44. Of 2001 filed by the petitioner, who remained as S.H.O. Railway Police Station for 'many years. At page 3 of the petition it was claimed that deceased brother of petitioner constructed a Katcha house over the open plot of Railway Property, and that the said construction was raised with the approval of D.E.N. In the petition, petitioner also claimed to have annexed approval letter and other documents. However, no such document is available on record.
I recall that on 7th February, 2001, when matter was placed before me as vacation Judge, I pointed it out to Mr. Zulfiqar A.I Naqvi, learned counsel for petitioner and he though undertook to file the documents but till date no such document has been filed. But since petitioner does not claim any right over the property and wants the allotment on the basis of letter, dated 24th January, 2001, therefore, this petition is also being disposed of, for the reasons mentioned above.
Petitions are devoid of any merits and are accordingly dismissed.