' MUHAMMAD FARRUKH IRFAN KHAN, J.---Facts of the case in brief are that land measuring 12-1/2 Acres situated at Chak No,13/RB Tehsil Safdarabad, District Sheikhupura was allotted to the father of the petitioner in the year 1963, who was Lambardar of said village under Pedigree Livestock Breeding Scheme. The said allotment was cancelled vide order dated 27-7-1965 against which the petitioner's father filed Writ Petition No,836 of 1966 before this Court which was disposed of vide order dated 18-6-1976 with direction to the revenue authorities to allot an alternate land to the father of the petitioner but the revenue authorities did not take any action in compliance with direction of this Court, however, the land in dispute remained in possession of the petitioner's father. The concerned Collector vide order dated 24-6-1983 directed for resumption of land against which appeal was filed and the Addl. Commissioner vide order dated 18-3-1985 accepted the same and remanded the matter to the Collector to decide the same in compliance with the orders of this Court dated 18-6-1976 but no action was ever taken thereupon. In the year 1992 the petitioner's father expired and he was appointed temporary Lamberdar and later on appointed as permanent Lamberdar vide order dated 11-7-2009. On application of respondent No,2 District Officer, Sheikhupura allotted the disputed land to him as Lamberdari grant vide order dated 10-11-2007.
The petitioner filed a review against the said order before the District Officer Revenue who dismissed the same vide order dated 8-9-2009. The petitioner's revision petition against the said order was also rejected by the EDO (Revenue) vide order dated 2-3-2011. Against the said order the petitioner filed a further revision petition before the Member Board of Revenue which was dismissed vide order dated 27-7-2011 and review petition of the petitioner also met the same fate vide order dated 28-3-2012. Being still dissatisfied the petitioner filed the instant Constitutional petition.
2. Learned counsel for the petitioner submits that the impugned orders of revenue authorities are illegal, against facts and without lawful authority; that the petitioner is in possession of the disputed land since its allotment and the District Officer concerned even did not even issue him any notice while allotting the same to respondent No,2; that the land falls within the prohibited zone and according to notifications of the government dated 31-3-1972 and 12-12- 1972 the same cannot be allotted for Lambardari grant and for that very reason the allotment of the petitioner's father was cancelled but the revenue hierarchy in sheer violation of the aforesaid notifications allotted the disputed land to respondent No,2.
3. Conversely, learned Law Officer assisted by learned counsel for respondent No,2 submitted that restrictions imposed on the allotment by virtue of notifications referred to by the learned counsel for the petitioners pertain to the Pedigree Livestock Breeding Scheme whereas the land was allotted to respondent No,2 on the Lamberdari Scheme; that the petitioner has no right over the disputed land and he is illegally occupying the same in the garb of frivolous litigation; that the allotment has been cancelled from the name of the petitioner's father in the year 1965 but he is occupying the same on one pretext or other uptill now and has not even deposited a single penny in the public exchequer; that the disputed land was allotted to respondent No,2 after observing all the codal formalities; that in compliance with the orders of this Court dated 18-6-1976 neither the petitioner nor his father ever applied for alternate land; that all the forums below after due consideration of the matter passed well-reasoned orders which needs no interference by this Court in its Constitutional petition.
4. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
5. It is an admitted fact that the land in question was allotted to the father of the petitioner under Pedigree Livestock Breeding Scheme and the same was cancelled vide order dated 27-7-1965. The petitioner's father assailed the cancellation order in Constitutional Petition No,838 of 1966 which was dismissed by this Court vide judgment dated 12-6-1976. The relevant extracts of the aforesaid judgment are reproduced as under:-- "S. The period of the lease was only 10 years which expired in June, 1972, but the petitioner has enjoyed possession of the lease under the stay orders of this Court for four years beyond the original term of the lease. It is unfortunate that despite the orders of "early hearing" passed by the Bench admitting this writ petition on 26-10-1966, the case could not be heard before today.
6. So far as merits of the case are concerned, the learned counsel for the petitioner was unable to challenge the correctness of the order of cancellation of the allotment, in view of the fact that the lot in question fell within one mile of the outer limits of Dhaban Singh Town and the area was not allotable under the provisions of the memorandum dated 25-?0-1960 afore cited.
7. The only plea pressed before me was that in all cases similar to the case of the petitioner the lambardars had been allotted alternative State lands and they had even obtained proprietary rights over the lands allotted to them in lieu of such lands.
8. I find some merit in this plea. The petitioner had not chosen the land which was allotted to him under the Pedigree Livestock Breeding Scheme himself. So far as the, question of fulfillment of the purposes which the land was allotted is concerned there is no allegation that the petitioner has not been maintaining the requisite animals in a proper manner. In fact he claims to have been awarded some prizes for the excellence of his animals. Consequently, in case the land given to him was not allotable under the Government policy, he deserved to be allotted some other State land in lieu of land which has been cancelled. His claim in this connection requires sympathetic consideration.
9. The result is that this writ petition is dismissed, with no order as to costs, subject to the observations made above. "
6. Thus, it is obvious that this Court not only affirmed the validity of the cancellation order of the allotment of the petitioner's father but also observed that the petitioner had been enjoying the possession of said land for four years beyond the terms of lease. Thereafter, the only cause available to the petitioner or his father was to move for allotment of alternate land but no such application on their behalf was ever moved and the petitioner continued to occupy the State land till to date without even depositing a single penny in the public exchequer under the garb of frivolous litigation. Learned counsel for the petitioner is unable to show any right of the petitioner qua the disputed land. If the petitioner by illegal means remained in possession of disputed property it does not create any right in his favour. Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is discretionary in nature and cannot be exercised to perpetuate ill gotten gains as it has been held in PLD 1973 SC 230 (Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others).
7. So far as the allotment of the disputed land to respondent No,2 is concerned, learned counsel for the petitioner has laid a lot of stress that as the disputed land has been included in prohibited area the same cannot be allotted to respondent No,2 in view of the notifications referred supra but bare perusal of the said notifications shows that the restriction imposed pertains to allotment under Pedigree Livestock Breeding Scheme, whereas, the land in question was allotted to respondent No,2 under Lamberdari Scheme. So far as contention of the learned counsel that as per Notification dated 4-6-2010, the above restriction is also imposed on allotment under Lamberdari Scheme, suffice it to observe that the land in dispute has been allotted to respondent No,2 on 10-11-2007 i.e, prior to issuance of the said notification which has no retrospective effect. All the forums below after due consideration of the facts and circumstances passed well reasoned orders and the learned counsel for the petitioner is unable to point out any illegality or irregularity in the same warranting interference by this Court in its Constitutional jurisdiction.
8. Resultantly, this petition being without any substance is dismissed. This Court also feels it appropriate to observe that apparently the petitioner has been enjoying the fruits of the disputed land for more than 40 years under the garb of sham litigations and as such caused great loss to the public exchequer. Therefore, respondent No,1 may proceed against him under the law for recovering `tawan' for the period the disputed land remained under his illegal possession.