' The brief facts out of which the present writ petition arises are that petitioner and late respondent No,2 are land owners in Cbak No,333/G.B.. Tehsil and District Toba Tek Singh. There are three Patties in the village in question out of which two are independent and are also allocated two different Lambardars namely Muhammad Anwar and Muhammad Ramzan. The third Patti is Mushtarika Patti. Therefore, existing two Lambardars are recovering water rate of this Patti jointly. The petitioner submitted an application to EDO(R) on 13-8-2002 for separation of the joint Patti and for creation of another post of Lambardar in the said village. The EDO (R) secured reports from the Revenue field staff and recorded the statements of the two existing Lambardars on 26-9-2002 and consequently created separate Patti comprising of existing joint Patti and resultantly directed creation of another post of Lambardar in the village in question vide order, dated 26-9-2002. Late respondent No,2 filed revision petition before the Member Board of Revenue who accepted the same vide impugned order, dated 30-5-2003 and remanded the case to the EDO(R) concerned with the direction to secure the recommendations of the DO(R)/District Collector regarding creation of another Patti.
The petitioner being aggrieved filed this writ petition.
2. Learned counsel of the petitioner submits that learned Member Board of Revenue erred in law that report was not secured by the Executive District Officer (Revenue) from the DO(R)/District Collector as is evident from Annexure-C attached with the Constitutional petition at page-19 wherein it is clear that on the application of the petitioner the matter was processed vide note, dated 9-9-2002; the report of the dealing official was endorsed by D.R.O. With his own note, dated 9-9-2002 and sent the same to the DO(R) who after signing the same sent to EDO(R). The EDO(R) after recording statements of the existing Lambardars of the village passed the order for creation of new Patti as well as creation of a new post of Lambardar in the village vide order, dated 26-9- 2002. The competent authority under the Rules is the EDO(R) in terms of Rule 16 of West Pakistan Land Revenue Rules, 1968 who has passed the order after application of mind on 26-9-2002 which was reserved by the Member Board of Revenue without application of mind and by misreading of the record and remanded the case to the EDO(R) with the direction to secure the recommendations of the DO(R)/ District Collector whereas the EDO(R) has passed the impugned order after completing all the legal formalities as is evident from the noting portion highlighted in the preceding paragraph. Therefore, order of the EDO(R) was quite in accordance with law and the Rules framed thereunder and passed the order on 26-9-2002 on the basis of the report of the subordinate Revenue staff. Therefore, Member Board of Revenue erred in law to observe that order, dated 26-9-2002 was passed by EDO(R) without obtaining a report from DO(R). Even otherwise it is not mandatory requirement.
3. Learned counsel of the respondent submits that Constitutional petition is not maintainable against the remand order. He further urges that Member Board of Revenue was justified to remand the case to EDO(R) after application of mind as the DO(R) has not given any opinion in his note, dated 9-9-2002. He further urges that for creation of a Patti 20 squares of land is required which is a mandatory provision according to para.617 of Colony Manual whereas land in joint Patti is 15/16 squares. He further submits that this Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below and cannot resolve the disputed question of fact in Constitutional jurisdiction.
4. Learned counsel of the petitioner in rebuttal submits that it is the prerogative of the EDO(R) to create a new Patti and new post of Lambardar in village according to the provisions of Punjab Land Revenue Act and Rules framed thereunder read with para. 617 of Colony Manual. He further submits that late respondent No,2 has submitted his application for appointment to the post in question along with the petitioner. Therefore, late respondent No,2 is estopped to file a revision petition before the Member Board of Revenue on the well known principle of estoppel and waiver. He further submits that during the pendency of this writ petition respondent No,2 has since been died.
Therefore, legal heirs of respondent No,2 have no right to pursue the matter as the post in question is to be filled by the authorities under the provisions of Land Revenue Act and Rules framed thereunder.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce operative part of the impugned order to resolve the controversy between the parties:-- "(5) I have already heard the arguments of the learned counsel for the parties. The record has been perused. It indicates that the assertion of the appellant that the views of the District Officer (Revenue), Toba Tek Singh were not obtained by the Executive District Officer (Revenue) is correct.
The Deputy District Officer (Revenue), Toba Tek Singh forwarded the case to the District Officer (Revenue) on 5-9-2002 which was marked by the District Officer (Revenue) to his office on 7-9- 2002. The record does not indicate that the matter was examined in the office of the District Officer (Revenue). Specific recommendations of the District Officer (Revenue) are also not available on record. It is strange that the Executive District Officer (Revenue) has made a statement in his order, dated 26-9-2002 that the Revenue field staff and District Officer (Revenue) had recommended creation of additional Patti. This statement is correct only to the extent of Revenue field staff.
(6) It has been held by the superior Courts that in the matters relating to the post of Lamberdar, recommendations of the District Collector may not be ignored. The District Collector has thus a very important role in the matters relating to "Lambardari'. For this reason alone, the appeal is accepted, the order, dated 26-9-2002 is set aside and the case is remanded to the Executive District Officer (Revenue), Toba TeX Singh with the direction to obtain the recommendations of the District Officer (Revenue)/District Collector regarding creation of another Patti. He may also hear all concerned and ensure strict adherence to all rules/instructions regarding creation of additional Patti."
' It is settled principle of law that the office of Lambardar is a selection post and the selection is administrative prerogative of the Revenue authorities who of course are to follow the Rules in this behalf. It is also settled principle of law that the appointment of Lambardar is purely an administrative function, that no particular person has a vested right to be appointed as Lambardar, that the selection cannot be made by the Courts in exercise of their Constitutional jurisdiction nor can the discharge of such administrative duties hampered or impeded by Courts intervention. In arriving- to this conclusion I am fortified by the law laid down by the superior Courts in the following judgments:- ' Muhammad Baluch's case (1996 M LD 120) and Haji Noorwar Jan's case (PLD 1991 SC 531).
' It is also settled principle of law that even in discretionary and administrative fields the law and its purposes had to be kept in view. The administrative discretion and the power does not extend to empower the authorities to rewrite the law of their own choice, to understand it the way they like and to lay down the law for subordinates and those in the lower hierarchy in an arbitrary manner and on an erroneous understanding of law. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Utility Stores Corporation's case (PLD 1987 SC 447) and Chairman Regional Transport Authority's case (PLD 1991 SC 14). The Board of Revenue interpreted para. 620 of Colony Manual and Rule 16 of Land Revenue Rules, 1968 and laid down certain principles to be followed by their subordinates in the following judgments:-- ' Muhammad Daim's case (1992 M LD 1983) and Ali Muhammad's case (PLD 1953) Rev. 3)
' It is admitted fact that Member Board of Revenue has given specific finding that DO(R) has not given his own recommendations. The finding is in consonance with the record as is evident from Annexure-C attached by the petitioner at page-19. DO(R) has only signed the note of DRO. It is settled principle of law that mere countersigning the note of the subordinate does not mean that countersigning authority has applied its own independent mind which is also not in consonance with the law laid down by the Honourable Supreme Court in Ghulam Mohy-ud-Din's case (PLD 1964 SC 829) which is also not in consonance with section 24-A newly added in General Clauses Act wherein it is duty cast upon the public functionaries to pass the orders after application of mind with reasons. Therefore, note of DO(R) does not fulfil the requirement of section 24-A of the General Clauses Act which is also in violation of the law laid down by the Honourable Supreme Court while interpreting section 24-A of the General Clauses Act in Messrs Airport Support Services' case (1998 SCM R 2268). It is settled principle of law that this Court has no jurisdiction to substitute its own fmding in place of the findings of the Tribunal below while exercising power under Article 199 of the Constitution as the law laid down by this Court in La11 Din's case D (2003 CLC 166). It is also settled principle of law that Constitutional petition is not maintainable against the remand order. In arriving to this conclusion I am fortified by the law laid down by this Court and Honourable Supreme Court in the following judgments:-- ' Abdul Karim's case (1993 M LD 1628) and Muhammad Aslam's case (PLD 1992 SC 819).
' It is also settled principle of law that Constitutional jurisdiction is a discretionary in character.
Where the substantial justice has been done between the parties then this E Court cannot exercise discretion in favour of the petitioner as the law laid down by the Honourable Supreme Court in the following judgments:-- ' Nawabzada Ronaq Ali's case (PLD 1973 SC 236) and Rana Muhammad Arshad's case (1998 SCM R 1462).
' The contention of the learned counsel of the petitioner that during the pendency of the writ- petition respondent No,2 has since been died therefore, revision filed by the late respondent No,2 has been abated has no force in view of Rule-5 of West Pakistan Land Revenue Rules, 1968.
7. In view of what has been discussed above, this petition has no merit. However, in the interest of justice and fair play parties are directed to appear before the EDO(R) concerned on 14-3-2005 who is directed to decide the matter afresh in terms of the order of Member, Board of Revenue dated 30-5-2003 within two months till 14-5-2005. He is further directed to submit report to Deputy Registrar (Judl.) of this Court.
' With these observations, this writ petition is disposed of. Copy `Dasti' on payment of usual charges.