Muhammad Shaukat Khan etc Vs Federation of Pakistan etc

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Judgment Sheet

Pnsnaw,q.R Hrcu Counr . ABBOTTABAD BrNcn

JUDICIAL DEPARTMENT

Writ n No.131 9

Muhammad Shaukat Khan etc... (Petitioners) versus

Federation of Pakistan etc... (Respondents) Present Sardar Abdur Rauf Khan and Mr.Muhammad Shafique Tanoli, Advocates for petitioners.

Mr.Abdul Sattar Khan, DAG for respondent No.1.

Mr.Shahid Aziz, Advocate for respondentsA'{HA.

Date of hearing: 13.12.2023.

JUDGMENT

IJAZ J.- Thro ugh the

instant petition filed under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, petitioners seek the following prayers:

e) (i) To issue appropriate directions to the respondents in Particular to respondents No.3 to 5 to construct Service Road on E-35 ExPresswaY

(Jamil) (D. B.) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khctn.

(Hazara MotorwaY) Package-l from Jharikas Interchange to village Amgah, Tehsil Ghazi District Haripur.

(ii)Pass any other appropriate orders, directions and instruction to the respondents or any other authority to redress the grievance of the petitioners and other local residents of the area.

(iii)Grant costs of the above

proceedings to the Petitioners.

(iv)Grant any other/further relief to the petitioners deems appropriate under the circumstance of the case.

2.Precisely, the facts of the case are that the petitioners are inhabitants of different villages situated on the brink of newly constructed E-35 Expressway from Burhan to Jharikas Interchange \ and that respondents had acquired their valuable

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properties for the construction of the aforesaid Expressway which has now been constructed as well, however, due to the construction of the aforesaid Expressway, the petitioners are (Jamil) (D. B.) Hon' ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khan.

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suffering insurmountable hardships and inconveniences as the said Expressway has blocked many old passages, road, paths and Darra (ur), which were connecting their villages inter-se, therefore, keeping in view the aforesaid hardships being faced by the petitioners, they submitted varlous applications for the construction of Service Road alongside the Expressway so that their villages could be interlinked through the same. They have further pleaded that though in the PC-l of the said Expressway, there was a provision that Service Roads including the desired portion of it are to be constructed on both sides of the Expressway but lateron they did not implement the said PC-l as no Service Road was constructed from Jharikas Interchange to village 0 Amgah, therefore, they have approached to this court for issuance of directions to the respondents to construct the desired portion of the Service Road

(Jamil) (D.8.) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khan.

3.When this case was taken up for hearing, the respondents were directed to file their parawise comments which they have accordingly submitted.

4.Arguments of learned counsel for the petitioners as well as learned DAG were heard in considerable detail. During the course of arguments, the main stance of the petitioners was that because of the construction of Expressway, the inhabitants of the area are facing unbearable difficulties. Their second submission was that respondents are bound to construct the Service Road on both sides of the Expressway as per approved PC-l, whereas the stance of the respondents was that they have constructed a maximum portion of the Service Road but as per their own needs and since the subject road (which the petitioners seek its construction) is neither the ,67 ownership of the respondents nor they can construct the road over the property of another authority or person, therefore, they are not bound to construct the same.

(Jamil) (D. B.) Hon' ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khan,

5.Keeping in view the contents of instant petition and the arguments so advanced by the learned counsel for the petitioners, we, at the very outset, asked the learned counsel for the petitioners that as to which right of the petitioners has been violated by the respondents for the enforcement of which they have filed the instant petition under Article 199 of The Constitution of Islamic Republic of Pakistan or in other words that as to whether the petitioners have suffered any "legal grievance", however during the course of his arguments, he could not pinpoint any such right which has conferred upon petitioners by The Constitution or any other ladstatute or accrued to them by an act or omission or by an action or inaction of any person including the respondents and such right has been refused or violated by the respondents. It is relevant to mention here that in c a broader sense, rights could be categorized in three categories i.e. fundamental rights, legal rights and vested rights where;

(Jamil) (D.8.) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khan.

Fundam riqhts are those rights which are conferred upon a citizenl person by The Constitution.

11 Legal rights are those rights which are conferred upon a person by anY law or statute other than The Constitution.

iii. Ves rishts are those rights which are accrued to a person due to an act or omission, action or inaction of another person.

Thus the petitioners' counsel was unable to establish on record that any of his rights has been refused or violated by the respondents.

6.It merits to mention here that there are five kinds of writ and for issuance of three kinds of writ i.e. Writ of Writ of Mandamus and Writ of Prohibition, a writ petitioner has to establish that he/she is an aggrieved person and that he/she has suffered a legal grievance, whereas for 0/ issuance of writ of other two kinds i.e. Writ of Quo Warranto and Writ of Habeas Corpus, such condition precedent would not be required and (Jamil) (D. B.) Hon' ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

thus for issuance of the former three kinds of writ, a writ petitioner has to establish that he/she has wrongly been deprived or that he/she has wrongly been refused something which he/she was otherwise legally entitled for the same or that he/she has wrongly been treated against the law and after the establishment of such a right followed by its violation or refusal by the public functionary it would be thereafter that he/she may be held as entitled for the issuance of the desired writ. In the case tilted "Hafiz HAMDIILLAE v.

SAIFULLAH KHAN and others" reported as PLD 2007 Sun Court 52. the Supreme Court of Pakistan has held that it may be noted that under Article 199(1)(a) of the Constitutional jurisdiction of the High Court can be invoked by an aggrieved person which denotes a person who has suffered a legal grievance, against whom a decision has been * pronounced which has wrongfully deprived him or wrongfully refused him something which he was legally entitled to. It is also the requirement that (Jamil) (D.8.) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan.

the person invoking the constitutional jurisdiction under Article 199 of the Constitution has to establish that any of his legal or fundamental right guaranteed under the Constitution has been violated resulting in legal loss. Similarly, in another case tilted il

FAZL.E.HAO,

ACC .GENERAL. WEST PAKISTAN

v. THE STATE" reported as PLD 1960 Supreme Court (Pak.) 295, the Supreme Court held that extraordinary jurisdiction of High Court could only be invoked by a person whose legal right has been denied. This view was also followed in the case titled ''MIAN F L DIN v. LAHORE IMPRO VEMENT T. LAHO and

41[!9g" reported as PLD 1969 Supreme Court 223, in which it was held by the Supreme Court that a writ petitioner has to show that he had a personal interest in performance of the legal duty which if not performed or performed in a manner not permiued by law would result in the loss of some personal benefit or advantage.

(Jamil) (D. B.) Hon' ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad l.iaz Khan.

7.During the course of arguments, the learned counsel for the petitioners was also confronted that as to whether a writ could be issued in favour of the petitioners only on the grounds of hardship, inconvenience, compassion or humanity, he was unable to wriggle out of the same and rightly so as it is settled since long that a writ could not be issued on the aforesaid grounds, albeit, hardship can only be considered as a ground for awarding any relief where there was any provision in the relevant law to meet such a situation, but neither at the cost of breach of any law nor by overstepping into the domain of executive. In the case titled

..DIRECTOR GENI-ERAL. NATIONAL SAVINGS.

ISLAMABAD vs BALOEES BEGUM and others" reported as PLD 2013 Supreme Court 174, the Supreme Court of Pakistan has held that concepts of compassion and hardship shall also be ,r7 considered by the Courts for providing relief to an aggrieved party in terms of Article 199 of the Constitution, only when there is room in the relevant law to do so, but undoubtedly not by the (Jamil) (D. B.) H on' ble Mr. Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

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breach of law and moreso by stultifying the right accrued to the opposite side orland to enfotce a right which the aggrieved party under the law has lost.

8.Keeping in view the aforesaid discussions on the subject-matter of the instant petition as well as expositions of the allied jurisprudence, we hold and declare that:-

(D A Constitution Petition seeking issuance of Writ of Certiorari. Writ of Mandamus or Writ of Prohibition, could only be entertainable and maintainable if the same is filed by a person who could establish that any of his rights i.e. fundamental right, legal right or vested right has been violated or the same has been refused bY a public functionarY, whereas a Constitution Petition seeking issuance of & it of arrant or Writ of Habeas Corpus, could be filed bY anY Derson irrespective of the aforesaid condition precedent that he is an aggrieved person or not.

(Jamil) (D.8.) Hon'ble Mr.Justice Kamran Hayat Miankhel' Hon'ble Mr.Justice Muhammad liaz Khan.

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(ii)A writ could not be issued on the grounds of hardship, inconvenience, compassion and humanity though such grounds could be considered but where there is any provision in the law or statute to meet such situation but such ground(s) could not be considered at the cost of breach of anY law or statute or right already accrued to another person.

g. In view of the above, since the petitioners have prayed for the issuance of Writ of Mandamus, however, they remained unsuccessful to establish the aforesaid constitutional and statutory yardstick for maintaining their writ petition, resultantly, this writ petition being bereft of any merit is hereby dismissed.

ANNOUNCED.

(Jamil)

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(D.8.) Hon 'ble Mr.Justice Kamran HaYat Miankhel, Hon 'ble Mr.Justice Muhammad ljaz Khan'