' MUHAMMAD NAWAZ BHATTI, J.---Through this writ petition the petitioner has challenged the vires of orders dated 23-5-2003 and 11-10-2003 passed by respondent No,1-Member Board of Revenue, Punjab Lahore, whereby he accepted the revision petition, set aside the impugned order dated 7- 6-1999 passed by the Commissioner, Multan Division, Multan and appointed respondent No,4 as permanent Lambardar.
2. Brief facts of the case are that Haq Nawaz (deceased) father of petitioner was permanent Lambardar of Chak No,94/10-R Tehsil and District, Khanewal and on his death the District Collector Khanewal invited fresh applications on 3-6-1991 for filling the vacancy. As many as fourteen candidates including petitioner and respondent No,4 submitted their applications for the said post.
After fulfilling all the formalities, the petitioner Muhammad Azmat was appointed as Lumbardar vide order dated 7-2-1994 passed by AC/Collector, Khanewal. Being aggrieved respondent No,4 preferred an appeal before the Commissioner, Multan Division, Multan which was dismissed vide order dated 7-6-1999. Respondent No,4 being aggrieved filed a revision petition before the Member Board of Revenue Punjab, Lahore which was accepted vide order dated 23-5-2003 and both the orders passed by District Collector as well as Commissioner Multan Division were set aside and respondent No,4 was appointed as Lumbardar. Petitioner filed review petition against the order dated 23-5-2003 before the Member Board of Revenue, Punjab, Lahore, which was dismissed vide order dated 11-10-2003 hence, this writ petition.
3. Learned counsel for the petitioner submits that the impugned orders passed by Member Board of Revenue arc against the law and facts of case and are not sustainable in the eyes of law as while passing the same he has wrongly held that petitioner's property is insufficient to stand security for Zar-e-Bharat, this observation is against the record as is evident from the reports of Tehsildar and A.C./Collector; that it has wrongly been held that petitioner is defaulter of Agricultural Development Bank of Pakistan, there is no evidence on the record relating to this aspect of the matter; that Member Board of Revenue has wrongly set aside the concurrent findings of both the Courts below without any material; that the impugned orders have been passed mechanically, arbitrarily and without application of judicial mind to the peculiar circumstances of the case and also based on surmises and conjectures and far-fetched conclusions. Further submits that the impugned orders are not in consonance with the real facts, they are based on mala fide and liable to be set aside. He has relied on "Noor Muhammad Lambadar v. Member (Revenue) Board of Revenue, Punjab, Lahore and others" (2003 SCM R 708), contending thereby that the rule of primogeniture was applicable in the petitioner's case up to 1-9-1999, on which date Shariat Appellate Bench of Supreme Court in "Maqbool Ahmad Qureshi v. Islamic Republic of Pakistan and others" (PLD 1999 SC 484) gave a verdict against the application of rule of primogeniture for the appointment of lambardar and declared the said rule against the injunctions of Islamic.
4. On the other hand learned counsel appearing on behalf of respondent No,4 has contended that as per rule of primogeniture eldest son is entitled to the post of Lambardar but petitioner owns only 1 Kanal and 16 Marlas of land which is insufficient for Zar-e-Bharat; that performance of petitioner as temporary Lambardar was not upto the mark; that petitioner is uneducated and is a man of ill repute Whereas respondent owns 40 Kanals of land and has passed primary school and also belongs to majority community. He has relied on "Muhammad Hassan v. The State" (1991 CLC 667) and "Allah Ditta v. Mian Nasir Ahmad and another" (PLD 1973 Lahore 359).
5. I have heard learned counsel for the parties and carefully perused the record. Petitioner is the son of Haq Nawaz (deceased) Lambardar. As per report submitted by the Tehsildar he owns 3 Kanals and 16 Marlas land. Perusal of record shows that he had purchased more land measuring 5 Kanals and 11 Marlas in the same locality and as such his ownership was sufficient to meet the requirement of Zar-e-Bharat as it is admitted fact that total revenue of the revenue estate becomes upto Rs,29,000 and it has nowhere incorporated that how much land a Lumbardar should own. This condition is only to meet the requirement of Zar-e-Bharat. On the other hand respondent is stranger and is also having primary pass certificate so education of the parties is equal. So far as the respondent's stand that petitioner has been defaulter, he has not placed on record any material from where it can be presumed that petitioner is defaulter.
6. The Member Judicial-III Board of Revenue vide impugned order has observed that petitioner is defaulter of Agricultural Development Bank of Pakistan and also defaulter of Government dues, he is uneducated and man of ill repute but nothing has been said in the judgment of the lower hierarchy. The findings of the Member Board of Revenue that the claim of petitioner for appointment, as a lambardar on the principle of primogeniture is un-Islamic. The Member Board of Revenue could not appreciate that when the cause of action accrued in the petitioner's case the rule ibid had not been declared un-Islamic by the Shariat Appellate Bench of Supreme Court of Pakistan.
7. The petitioner was appointed temporary lambardar being son of deceased Haq Nawaz permanent lambardar of the estate Chak No,94/10-R Tehsil and District Khanewal. He was appointed as permanent lambardar by the Collector keeping in view the hereditary claim under rule 19(2) of the West Pakistan Land Revenue Rules, 1968 which reads as under:--
(2) In other estates, the nearest eligible heir, according to the rules of primogeniture shall be appointed unless some special custom of succession to the office be distinctly proved but subject, in every case, to the following provisions:--
(a) The claim of collateral of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant, in the male line, of the paternal great grand father of the last incumbent.
(b) Where a headman has been dismissed in accordance with the provisions of rule 18 the Collector may refuse to appoint any of his heirs:--
(i) If the circumstances of the offence, dereliction of duty or disqualification, for which the headman was dismissed, make it probable that he would be unsuitable as a headman;
(ii) If there is reason to believe that he has connived at the offence or dereliction of duty for which the headman has been dismissed;
(iii) If any disqualification for which the headman has been dismissed, attaches to him;
(iv) If he may reasonably be supposed to be under influence of the dismissed headman or his family to an undesirable extent."
8. The allegations levelled by Abdur Reham respondent No,4 against the petitioner were found premature and that is only petitioner who was appointed permanent lambardar. While deciding the matter, in the revision, the Member Board of Revenue has failed to appreciate that when the cause of action accrued the Hon'ble Shariat Bench decision was not in the field and the decision had no retrospective effect on the past cause of action as had been held in Pakistan International Air Lines Corporation v. Messrs Pak Saaf Dry Cleaners" (PLD 1981 SC 553). Keeping in view the rule of primogeniture there is no disqualification imputed to the petitioner.
9. For what has been discussed above instant writ petition is accepted, impugned order dated 23- 5-2003 and 11-10-2003 passed by Member Board of Revenue are set aside and the case is remanded to the Member Board of Revenue to decide afresh on merits in accordance with law applicable to the case after giving full opportunity of hearing to both the parties.