Respondent No: 4 approached through an application dated 17.12.1996, Tehsildar Pasroor for his appointment as Lambardar in place of his brother Nazir Ahmad who had since died. Nazir Ahmad (deceased) at the time of the death of his 'father Hameed Ahmad Khan, was appointed Lambardar. Said Nazir Ahmad (deceased) due to old age and illiteracy entrusted this assignment to Respondent No, 4 on superdari. Petitioner also moved an application on 18.4.1997, for his appointment as Lambardar on the basis of his experience and unblemished performance.
2. Tehsildar processed, both the applications, got recorded the statements of residents of the village and submitted his report to Respondent No, 3 recommending therein, the petitioner to be a suitable candidate. Petitioner was appointed as permanent Lambardar by Respondent No, 3, vide order dated 20.3.2001. Respondent No, 4, assailed in appeal, the order dated 20.3.2001, before Additional Commissioner Revenue Gujranwala. The appeal was entrusted to Respondent No, 2, under new set up, who after hearing the parties dismissed the appeal on 7.11.2001. Respondent No, 4, thereafter challenged the orders dated 20.3.2001 and 7.11.2001, through a revision petition, before Respondent No, 1, who accepted the. revision on 19.6.2003, set aside the orders impugned before him and appointed Respondent No, 4 as Lambardar. The review application was dismissed by Respondent No, 1 on 7.10.2003. The orders of Respondent No, 1 dated 19.5.2003 and 7.10.2003, are assailed in this writ petition.
3. Learned counsel for the petitioner has contended that Respondent No, 4 was not first son, so his case did not fall under the rule of primogeniture. He has referred to the case of 'Muhammad Ismail versus Member qudicial-II) BOR" (1994 CLC 913) to contend that second son's case is required to be treated under Rule 17 of the West Pakistan Land Revenue Rules, 1968, alongwith other candidates.
Respondent No, 2, while passing the order dated 7.11.2001 has taken into consideration the provisions of Rule 17 of West Pakistan Land Revenue Rules, 1968 and decided the matter in favour of the petitioner. He argued further that petitioner has more land in the village than Respondent No 4.
He belongs to Jat Baradri, which is in majority in village 'and lastly that petitioner is experienced person and has performed his duties as Lambardar without any complaint for the past 15- Years.
He while placing reliance on the case of 'Muhammad Younas versus Member (Revenue) BOR" (1997 SCMR 1115) contended that petitioner was more suitable than Respondent No, 4 on the basis of his experience, owner of substantial land holding and belonging to majority community i,e, Jats. He then relied upon the case of "Tqj Muhammad versus MBR" (1994 CLC 906) to contend that petitioner being Chairman of Zakat and Usher Committee was a better candidate than his contestant.
4. Learned counsel for Respondent No, 4, on the other hand, has supported the impugned order. He has submitted that Respondent.No, 4 had moved an application for appointment of Lambardar in the year, 1996, at the time when the principle of primogeniture was applicable. He added that appoint on the basis of rule of primogeniture were declared as unislamic. Subsequently, Respondent No, 4, who was an educated person, retired employee of WAPDA and. was son of Lambardar was appointed as Lambardar by Respondent No, 1, keeping in view these qualifications.
Learned counsel in support of his contention has referred to the case of "Mst. Nasreen lqbal versus Member (Revenue) BOR" (PLD 1993 Lahore 423), wherein the appointment of Larnbardar was declared as void, on the basis of Rule of Primogeniture.
5. Heard learned counsel for the parties and perused the record.
6. Perusal of the impugned order dated 19.5.2003 reveals that revision was accepted on the grounds that respondent is a retired employee, educated, son of former Lambardar and belongs to Muhajir community and the locals already have their representation. Respondent No, 1 has ignored other factors, which were duly considered by Respondents Nos, 2 and 3. Respondent No, 1, while passing the impugned order was under an obligation to consider the following essentials:--
(i) Hereditary claim;
(ii) Extent of Property in estate; (iii)Services rendered to the Government;
(iv) Character, ability and freedom from indebtedness;
(v) Strength and importance to the community to which a candidate belongs.
7. Respondent No, 1, while passing the order in question failed to apply the correct law as embodied in Rules 17, West Pakistan Land Revenue, Rules, 1968 and the dictum of law laid down in the case of 'Muhammad Younas versus Member BOR" (1997 SCMR 1115). Respondent No, 1 has brushed aside the choice of Collector in the selection of Lambardar, Which as per various decisions of the Board of Revenue itself is not to be interfere with, specially when he exercises his discretiOn in a reasonable, manner, reference can be made to the cases of 'Abdus Slam Rajpur versus Muhammad Amin Khan Rajput" (PLD 1972 Revenue 16), "Haji Burhan versus Haji Ibrahim" (PLD 1974 Revenue 82).
8. The petitioner has rendered the service as Sarbarah Lambardar for over a decade without any complaint. He belongs to Jat Biradari, which is major baradari in the village. The petitioner is Chairman of Zakat and Usher Committee of area.. He owns more land in the village than Respondent No:
4. The Collector has exercised his discretion in favour of the petitioner, which is based on valid reasons and not perverse.
9. For the reasons aforementioned, this petition is allowed, orders impugned dated. 19.5.2003 and 7.10.2003 are declared to have been passed without lawful authority and with no legal effect.
Resultantly orders dated 20.3.2001 and 7.11.2001 passed by Respondents Nos, 3 and 2 respectively are restored: