' IQBAL HAMEED-UR-RAHMAN, J.---Through this writ petition, the petitioner seeks appointment of Lambardar of Chak No,322/JB Tehsil and District Toba Tek Singh. The instant prayer of the petitioner is that the impugned order, dated 11-2-2007 passed by the learned Member Board of Revenue, Punjab, Lahore be set aside and the order, dated 6-2-2007 passed by the District Officer (Revenue), Toba Tek Singh (respondent No,4) and the order, dated 28-5-2008 passed by the Executive District Officer (Revenue), Toba Tek Singh, (respondent No,3) be restored.
2. Brief facts required for the determination of this writ petition are that father of the petitioner, namely, Muhammad Sharif was a Lambardar of Chak No,322/JB, Tehsil and District Toba Tek Singh.
Before his death, he was an old and infirm person, therefore, the petitioner had been performing the functions of Lambardar for a long time, firstly on his behalf and lastly as Sarbarah Lambaradar at least for six years. After the death of Muhammad Sharif Lambardar, father of the petitioner, respondent No,4 called for applications for the appointment of Lambardar for Chak No,322/JB Tehsil and District Toba Tek Singh. Nine applicants including the petitioner and respondent No,1 applied. The Tehsildar after thorough inquiry submitted the report in respect of all the nine applicants without recommending the name of any one. The summary was duly forwarded by the District Officer (Revenue), Toba Tek Singh (respondent No,4) in the same manner. Therefore, respondent No,4 vide his order, dated 6-2-2007 appointed the petitioner as Lambardar taking into consideration that he is the son of the deceased Lambardar, as such he had hereditary claim, he holds 24 acres of land, which was sufficient to meet the requirement of Zar-e-Bhart, he was familiar with the job of a Lambardar as he had been performing the duties as Sarbrah Lambardar for a considerable time, he had been collecting the land revenue since long, he had been depositing the same in the Government Treasury without any default as well as he belongs to majority Arain Family and the post of Lambardar had been held by his family since two generations and with regard to respondent No,1, respondent No,4 had held that although he was more educated and big land owner, yet this was no ground for appointment of Larnbardar in view of rule 17 of Land Revenue Rules, 1968 and further held that respondent No,1 was an Advocate and according to rule 175 of Legal Practitioner and Bar Council Rules, 1976, an Advocate was not entitled to hold any post of profit. Moreover, respondent No,1 is stated to have been involved in case under section 16 MPO and sections 148 and 149, P.P.C. Against the appointment of the petitioner as Lambardar by respondent No,4 vide his order, dated 6-2-2007, three appeals were filed before the EDO(R), Toba Tek Singh, one by Habib Ullah, second by respondent No,1 and the third by Muhammad Ashraf. The EDO(R), Toba Tek Singh (respondent No,3) dismissed all the three appeals vide order, dated 28-5-2008 and upheld the order, dated 6-2-2007 passed by respondent No,4.
The order, dated 28-5-2008 passed by respondent No,3 was challenged by filing two revision petitions, one by respondent No,1 (ROR 862/08) and the other by Habib Ullah (ROR No, 880/08), before the learned Member Board of Revenue, Punjab, Lahore, who dismissed the revision petition filed by Habib Ullah and accepted the revision petition filed by respondent No,1 vide order, dated 11- 2-2009 by upsetting both the orders passed by respondent No,4 as well as respondent No,3, dated 6-2-2007 and .28-5-2008 respectively and the appointment of the petitioner as Lambardar had been set aside. Hence this writ petition.
3. It is argued on behalf of the petitioner that the impugned order has been passed against the concurrent findings of two revenue authorities in favour of the petitioner and the same has been set aside without any justification and without taking into consideration the settled principles of law regarding the appointment of Lambardar and in this regard he has refereed to rule 17 of the West Pakistan Land Revenue Rules, 1968, where the criteria for the appointment of Lambardar is as follows:--
(a) Hereditary claim of the candidate;
(b) extent of property in the Estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate, the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate;
(c) services rendered to Government by him or by his family;
(d) his personal influence, character, ability and freedom from indebtedness;
(e) strength and importance of community from which selection of the headman is to be made;
(f) his ability to undergo training in Civil Defence in the case of headmen in Tehsils situated along with the Border.
' It is further argued that although respondent No,1 was more educated and possessed more land, but according to the criteria laid down in rule 17 of the said Rules, the petitioner possessed the required qualification for appointment of Lambardar and the same had been taken into consideration by both respondent No,4 and respondent No,3. It is further argued that the petitioner had the preference of hereditary claim as he had already been acting on behalf of his father as well as Sarbrah Lambardar, as such, he has -rendered services to the Government; that the petitioner holds substantial land measuring 24 acres which was sufficient to meet the requirements of Zar-e-Bhart; that the petitioner belongs to the majority of Arain community and the post of Lambardar was held by his family for the last two generations; that the petitioner has personal influence and strength in the community, which was important for the appointment of Lambardar and these have been taken into consideration by both respondents No,4 and respondent No,3. It is further argued that it is a settled principle of law that the Lambardar is choice of the Collector, as such, there was no perversity or serious illegality in the orders of respondents Nos.4 and 3 and in this behalf, reliance is placed upon Haji Burhan v. Haji Ibrahim (PLD 1974 Revenue 82). It is further argued that according to Rule 17 of the West Pakistan Land Revenue Rules, 1968, there is no criteria for education, as such, the hereditary claim of the petitioner is to be given preference and in this behalf, reliance is placed upon Bashir Ahmad v. Member (Judicial-HI), Board of Revenue, Punjab, Lahore and others (2002 SCM R 1371) and Muhammad Saleem v. Member (Judicial-V), Board of Revenue, Punjab, Lahore, and others (2007 M LD 349). It is further stated that the land owners of Arain families in the village are 260 holding an area of 300 acres while Rajputs are 60 in numbers holding an area of 200 acres and as propounded in Imam Bakhsh Shah v. Imam Din (PLD 1964 W.P. (Revenue) 126), the major tribe shall be given the preference if it is holding small area. It is further stated that respondent No,1 is an advocate and he was involved in case under section 16 MPO and sections 148 and 149 P.P.C. Moreover, the petitioner has come to know that respondent No,1 had applied for migration to U.K. Which had been approved and respondent No,1 is intending to leave the country in the next month, as such, he has lost his claim. In view of the same, the petitioner is entitled to be appointed as Lambardar and the impugned order, dated 11-2-2009 be set aside and the orders, dated 6-2-2007 and 28-5-2008 passed by respondents Nos.4 and 3 be restored.
4. On the other hand, learned counsel for respondent No,1 at the very outset has raised preliminary objection as to the maintainability of the instant writ petition. It is stated that the petitioner has not approached this Court with clean hands as he had assailed the impugned order, dated 11-2-2009 passed by the learned Member Board of Revenue by filing a review petition on 16-3-2009 and the same was pending when this writ petition had been filed before this Court and this fact has been completely concealed by the petitioner in the writ petition, as such, the petitioner cannot seek any equitable relief under the constitutional jurisdiction of this Court and the instant writ petition on this score requires straightway dismissal and in this behalf, reliance is placed upon Saifullah Khan and another v. Settlement Commissioner, Punjab Lahore and 5 others (1982 SCMR 583). It is further argued without prejudice to the preliminary objection that the petitioner is Chairman of Mogha Committee to collect Aabiana, as such, he is a Government Servant, which disentitles him to the claim of Lambardar and that on his failure to perform duties in depositing Aabiana notices, dated 15-12-2008, 20-4-2009 and 25-5-2009 were issued to the petitioner, and in the light of the same, the petitioner becomes disqualified from appointment as Lambardar. It is further stated that respondent No,1 was elected as President of the Bar Association and on account of his activities as a President of the Bar, which is of a political nature, he had been involved in case under section 16 MPO and sections 148 and 149, P.P.C., which was subsequently withdrawn by the concerned authorities, as such, the same cannot be taken into consideration. Learned counsel for respondent No,1 while adverting to the impugned order says that respondent No,1 also has hereditary claim as is stated in para.8 of the impugned order. It is further argued that under the Legal Practioners and Bar Council Rules, 1976, there is no bar for being appointed as Lambardar. It is further stated that the respondent being more educated and more competent, can more effectively perform the duties of Lambardar and in this regard, reliance is placed upon Muhammad Shaffi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (1972 SCM R 253), Taj Muhammad v.
M.B.R. (1994 CLC 906) and Taj Muhammad v. Inayat Beg (PLD 1959 W.P. (Rev.) 96). Moreover, the question of Lambardar cannot be adjudicated and determined under the jurisdiction of this Court and in this regard, reliance is placed upon Khan Muhammad v. Member, Board of Revenue and others (1999 YLR 221), Muhammad Afzal v. Senior Member, Board of Revenue, Punjab, Lahore and 6 others (2003 M LD 157), Sharaf Din v. Qazi Abdul Jalil and another (1986 SCM R 1368), Abdul Ghafoor V. Member Judicial II, Board of Revenue Punjab and 3 others 2003 YLR 1960 and Abdul Ghafoor v.
The Member (Revenue), Board of Revenue and another (1982 SCM R 202). Learned counsel for respondent No,1 vehemently denies the allegation of the petitioner that respondent No,1 is migrating to U.K. As he is proceeding only for a short period and he does not intend to migrate to U.K. In view of his above contentions, learned counsel for respondent No,1 urges that this writ petition merits dismissal. The learned Additional Advocate-General 'agrees with the arguments of learned counsel for the respondent.
5. In rebuttal, learned counsel for the petitioner states that on 25-3-2009, the petitioner, before filing of this petition, had filed an application for the withdrawal of the review petition but no order on the same had been passed by the learned Member Board of Revenue, as such, the same is not to be taken into consideration. It is further stated that the legal Practitioners and Bar Council Rules, 1976 impose a bar on an advocate from holding any post of profit, as such, its implication has not been taken into consideration in the impugned order. It is further stated that the contention of respondent No,1 that the petitioner has been a Chairman of Mogha Committee has for the first time taken up before this Court in the instant petition and this was not taken up in the earlier forums and the same should have been taken in the written reply but the written reply to the writ petition had not been filed, as such, the same cannot be taken into consideration while deciding this writ petition. It is further asserted by learned counsel for the petitioner that in the report and comments, respondents Nos.3 and 4 had accepted the stance of the petitioner, as such, the writ petition deserves to be accepted and the impugned order, dated 11-2-2009 be declared illegal.
6. I have heard learned counsel for the petitioner as well as learned counsel for respondent No,1 and the learned Additional-General and have also perused the impugned order as well as the orders, dated 6-2-2007 and 28-5-2008 passed by respondents Nos.4 and 3 as well as other material available on the record.
7. First of all it is necessary to reproduce rule 17 of West Pakistan Land Revenue Rules, 1968, which lays down the criteria for the appointment of Lambardar, which is as follows:-- "Matters to considered in first appointment.--- ' In all first appointment of headmen regard shall be had among other matters to,--
(a) Hereditary claim of the candidate;
(b) Extent of property in the Estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate, the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate;
(c) Services rendered to Government by him or by his family;
(d) his personal influence, character, ability and freedom from indebtedness;
(e) Strength and importance of community from which selection of a headman is to be made;
(f) his ability to undergo training in Civil Defence in the case of headmen in Tehsils situated along with the Boarder."
' The petitioner has hereditary claim as he is son of the deceased Lambardar, who serve the State as Lambardar for so many years. The petitioner was familiar with the job of a Lambardar as he had been performing the fuctions of Lambardar for a long time, firstly on his behalf and lastly as Sarbarah Lambardar at least for a six years. He is owner of land measuring 24 acres kanals which was quite sufficient to meet the requirements of Zar-e-Bhart. After the death of his father, he has been collecting Aabiana and has been depositing the same in the Government Treasury without any default. The petitioner belongs to the majority of Arain community and the post of Lambardar was held by his family for the last two generations. Whereas respondent No,1 is a big land owner and is more educated. The contention of respondent No,1 that he being more educated is entitled to be appointed as Lambardar is misconceived as rule 17 of the West Pakistan Land Revenue Rules, 1968 is silent on the subject. Merely having a more holding by a candidate is also no ground for claiming superiority for the post of Lambardar. In this behalf, reliance is placed upon Bashir Ahmad v. Member (Judicial-III), Board of Revenue, Punjab, Lahore and others (2002 SCM R 1371) and Muhammad Saleem v. Member (Judicial-V), Board of Revenue, Punjab, Lahore and others 2007 M LD 349 wherein it was held that hereditary claim is one of the qualifying merits and is to be given preference for appointment of Lambardar besides other grounds for appointment. There is nothing adverse against him on the record about his conduct, as is evident from the report of the police, dated 21-4-2005, which was made on the letter of Tehsildar, dated 13-4-2005. Whereas respondent No,1 has previously been involved in case under. Section 16 MPO and sections 148 and 149, P.P.C. The petitioner belongs to Arain majority community whereas respondent No,1 belongs to Rajput family.
The land owners of Arain families in the village are 260 holding 300 acres of land while Rajputs are 60 in numbers holding 200 acrs of land, a such, respondent No,1 belongs to the minority Community of the village and does not meet the criteria regarding the strength and importance of community for appointment of Lambardar as contained in the Rule 17(e) of the said Rules. In this respect, reliance is placed upon Imam Bakhsh Shah v. Imam Din (PLD 1964 W.P. (Revenue) 126).
Even otherwise, Lambardar is choice of the Collector, as such, there was no perversity or serious illegality in the orders of respondents Nos.4 and 3 and in this behalf, reliance is placed upon Haji Burhan v. Haji Ibrahim (PLD 1974 Revenue 82). The contention of respondent No,1 that the petitioner has been a Chairman of Mogha Committee which disentitles him to the claim of Lambardar has for the first time taken up before this Court and this was not taken up in the earlier forums, as such, the same cannot be taken into consideration at this stage.
8. In view of the above circumstances !Rid relying upon the authorities cited by learned counsel for the petitioner and keeping in view the criteria laid down in rule 17 of the West Pakistan Land Revenue Rules, 1968, the petitioner was rightly appointed as Lambardar in the revenue estate of Chak No,322/JB Tehsil Toba Tek Singh by the order, dated 6-2-2009 passed by the District Officer (Revenue), Toba Tek Singh and the said order was upheld by Executive District Officer (Revenue), Toba Tek Singh, vide order, dated 28-5-2008. Consequently, this writ petition is accepted, the impugned order, dated 11-2-2009 passed by the learned Member (Judicial-IV), Board of Revenue, Punjab, Lahore, is set aside and the order, dated 6-2-2009 passed by the District Officer (Revenue) and the order, dated 28-5-2008 passed by the Executive District Officer (Revenue), Toba Tek Singh, are restored.