19941 L D 1822 (PLP)

Briefly stated facts of the case out of which this petition has arisen are that landed property which was reserved for the forest and was in possession of the Forest Department, respondent No.3 herein, was allotted to petitioners Nos.l to 3 on 2-1-1964 and was subsequently purchased by petitioners Nos.4 to

6. Appeal filed by the sitting allottees failed. However subsequently on the basis of a Mukhbari application, the land in question was cancelled by the respondents Nos.1 and 2 vide impugned orders. In this Constitutional petition, these orders have been challenged on the ground that after the allotment was upheld in appeal, proceedings under section 10/11 of the Displaced Persons (Land Settlement) Act could not have been held and in pursuance thereof the allotment could not have been cancelled.

2. Learned counsel appearing for the petitioners has relied upon the cases of Muhammad All v. Fazal Hussain 1975 SCMR 61 and Amjad Zaman Khan v. Settlement Commissioner, Multan and others 1981 CLC 1641 in? support of his contentions. Mr. Hamid Ali Mirza, Advocate, learned counsel has appeared on behalf of respondents Nos.1 and

2. Rana Muhammad Arshad learned Addl. A.-G. has appeared on behalf of respondent No.3. Both the learned counsel appearing for the respondents have argued that in view of the latest pronouncement by their Lordships of the Supreme Court of Pakistan in case of Province of Punjab v. Muhammad Mahmood Shah 1991 SCMR 1426 and C.A. No.269 of 1983, decided on 18-2-1991 as the original allottee was admittedly not in possession of the land in question, the land in question being reserved for the Forest Department could not have been validly allotted and confirmed to the petitioners and hence the allotment in question being void ab initio could have been cancelled by respondents Nos.1 and

2. Learned counsel further stated that it being a lawful order, even if the provisions of law under which the same has been cancelled is not correctly applied even then the impugned order could not be interfered with in exercise of the writ jurisdiction of this Court as the same cannot be exercised in aid of retention of ill-gotten gains.

3. I have considered the arguments addressed by both the learned counsel for the parties. It is admitted in ground (4) of the writ petition that the land in question has throughout been with the Forest Department. Learned counsel for the petitioners has candidly conceded this position and has stated that the petitioners were not in possession of the land in question. Ground (4) of the writ petition reads as under:

"that the land subject-matter of this petition was with the Forest Department and it was to remain with it till 1987. No displaced person wanted to get such land allotted for which he would have to wait for a quarter of century, that is, whole generation. The petitioners however undertook to accept the handicap and suffer the deprivation of the said land for that long period. The petitioners knew that the land would be returned after about a quarter of century, but it would have become a much improved land and would be free from all encumbrances." In view of the above, admittedly factual position, applying the test as laid down in the case of Province of Punjab v. Muhammad Mahmood Shah 1991 SCMR 1426 referred to above, I hold that the allotment in favour of the petitioners, was void ab initio and as such the petitioners are not entitled to retain it and could have been cancelled. It vests in the respondent No.3 and as such the petitioners have no cause of grievance. Even if the impugned order could n d have been passed under sections 10/11 of the Displaced Persons (Lane Settlement) Act, 1958, exercise of writ jurisdiction is discretionary in nature and cannot be exercised in favour of retention of illegal gains, even if the order challenged is not strictly in accordance with law. The impugned orders being quite lawful fair, just and in consonance with the law laid down in the aforementioned pronouncement by their Lordships of the Supreme Court of Pakistan. Writ jurisdiction being discretionary, I see no force in this writ Petition and the same is hereby dismissed with costs. H.1.T./A-627/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.