DR. LIAQUAT ALI KHAN NIAZI, MEMBER (JUDICIAL-II) - These are revision petitions under Section 164 of Land Revenue Act, 1967, against order dated 15.4.1996 passed by Commissioner, Sargodha Division, Sargodha. The Deputy Commissioner, Mianwali vide his order dated 18.6.1995 appointed Mr. Ishtiaq Hussain as Lambardar of Chak No. 14/ML, Tehsil Piplan, District Mianwali. Hence these revision petitions. Thus this single order disposes of R.O.R. No. 902/1996 and R.O.R. No. 1317/1996.
2. Mr. Hameed Jilani, Mr. Muhammad Saeed Asadi and Mr. Muhammad Irshad, Advocates, represented the petitioner and Mr. Sabir Hussain Baloch, Advocate represented respondent Ishtiaq Ahmad. Arguments heard and record perused.
3. The learned counsel for the petitioner Mr. Dildar Khan argued that Mr. Ishtiaq Ahmad, owns 39 Kanals of land. He was convicted for one year in 1985. He was fined Rs. 1500/- in another case. He is a Matriculate.
4. The learned counsel for the petitioner, Dildar Khan further argued that on the death of Mushtaq Ahmad temporary Lambardar; the Collector, Mianwali vide his order dated 18.6.1995, appointed the respondent Ishhaq Ahmad as the Lambardar on the ground that he was the son of Mushtaq Ahmad deceased Lambardar and was entitled to be appointed as such. An appeal was filed before the Commissioner, Sargodha Division by the petitioner, which was disposed of with the following concluding findings:- "After hearing the arguments of both the parties. I have come to the conclusion that the District Collector has rightly appointed Ishtiaq Ahmad, Lambardar following the rule of primogeniture against the post fallen vacant on the death of ex-Lambardar, his father. The impugned order does not suffer from any illegality and is maintainable. The appeals having no force are rejected." ; Both: the Courts below merely appointed the respondent. Ishtiaq Ahmad as Lambardar after having read in the record that his father was a Lambardar not realizing that the appointment of his father. Mushtaq Ahmad was never made on regular basis and it was necessary at some point of time to appoint a permanent Lambardar and only then the rules of primogeniture could be made applicable for the appointment of the eldest son as Lambardar. The learned counsel for the petitioner argued that both the Courts below fell into error while making appointment as they proceeded to rely on his hereditary claim whereas hereditary claim was not available to the respondent for more than one reason. Firstly the same has been declared to be against the injunctions of Islam a reported in P.L.D. 1999 S.C. 444. Moreover hereditary claim can be ignored even if the person claiming hereditary claim has some disqualification or is not a favourable candidate as appointment of Lambardar is essentially an administrative appointment for convenience and assistance of the administration and also for taking care of the interest of the landowners. A person who indulges in criminal case cannot be considered to be suitable person for appointment of Lambardar and the authorities are bound to consider the conduct of a party. The conduct of the petitioner is exemplary. Reliance was placed on:-
(i) 1968 SCMR665. 7
(ii) PLD 1995 Rev. 68
(iii) NLR 1992 Rev. 56,
(iv) 1994 MLD.
5. The learned counsel for the petitioner prayed that order passed by the District Collector, Mianwali dated 18:6.1995 and that of the Commissioner, Sargodha Division dated 15.4.1996 may be set aside and Mr. Dildar Khan be appointed as Lambardar of Revenue Estate of Chak No. 14/ML, Tehsil Piplan District Mianwali being the most suitable candidate.
6. It was argued on behalf of Dildar Khan that he did have hereditary claim. Mr. Dildar Khan owns 360 Kanals- 2 Marais of land. He served as Member Union Council and the had no conviction. Mr. Dildar is a Matriculate and he is not a defaulter, It was further argued that he belongs to Rajput Community,
7. The learned Counsel on behalf of Mr. Ishtiaq Ahmad clarified that probation order passed against Ishtiaq Ahmad does not tentamount to conviction. Mr. Ishtiaq Ahmad was rightly appointed. As Lambardar by the D.C., Mianwali. His decision was upheld by Commissioner, Sargodha Division, Ishtiaq Ahmad had experience as Lambardar since 1995. Learned counsel on behalf of Mr. Ishtiaq Ahmad argued that two F.I.Rs. Were lodged against Dilardar Khan. One of them was F.I.R. No. 337, dated 1.6.2006 and a criminal case is pending against Mr. Dildar Khan in the Court of Mr. Khizar Hayat Minhas, Civil Judge.
8. The learned counsel for the respondent further argued that a case under Sections 420/468, 471, Pakistan Penal Code was registered against Ishtiaq Ahmad, respondent vide F.I.R. No. 169/07, dated 1.11.2007 Police Station District MianWali but the respondent was discharged in this case later one.
9. Now criteria as laid down in Rule 17 of The Punjab Land Revenue Rules of 1968 shall be discussed, In all first appointments of headmen regard shall be had among other matters to--- given infra: The Criteria DILDAR KHAN ISHTIAQ AHMAD (As laid down in Section 17)
(As candidate for Village Headman/Lambardar) (As Candidate for Village Headman/Lambardar)
(i) Hereditary Claim : , t Does not have hereditary claim.
' Has hereditary claim. His father Mushtaq Ahmad was 'a Lambardar of* Chak No. 14/ML
(ii) Extent of property in the estate possessed by the candidate Owns 360 Kanals-2 Marlas of land.
Owns 39 Kanals of land. Land meets requirement of Zare- Barath.
(iii) Service rendered to the government bv him or his family. Served as Member Union Council.
No social service rendered. He had' been working as Lambardar since 1995.
(iv) Personal Influence: Character ' Case under Sections 337/34, 337 & 337-A, P.P.C, vide F.I.R, dated * 1.6.2006 is pending against him in the Court of Civil Judge, Piplan. Probation order Convicted for one year in 1985. He was fined Rs.
1500/- in I another case. He is ; also a Matriculate Ability: - He is also not a defaulter.
Freedom from He is a Matriculate. Not a defaulter I t | indebtedness. (v) The strenth/importance Belongs to Rajput community He also belongs to Rajput community of the community from which selection of headman is to be made. Fvi) Ability. To undergo training in Civil Defence in the case of headman in Tehsils along the Border. It is not applicable in this case.
' It is not applicable in this case. .
10. After hearing the, parties and perusing the record, I have reached the conclusion that the version of the respondent Ishtiaq Ahmad is more dependable and reliable. It was held in (1990 CLC .1983 j Board, of Revenue, Punjab Ghulam Farid v, Ahmad Din:- "It is a well-settled principle that all things being equal the choice of the District Collector should be respected, In a case where the contestants are evenly poised ' the choice of the Collector gains added significance and cannot be easily brushed as aside when it is neither perverse nor unlawful."
11.. It was held in 2007 SCMR 1965, Supreme Court of Pakistan, Mehr Ali v. Noor Muhammad, Ar. 17 & 19 (2) West Pakistan Board of Revenue Act (XI of 1951), 57 Constitution of Pakistan (1973) Art. 185(3)- Appointment of Lambardar-Concurrent findings of fact by the Courts below- -Revisional jurisdiction of Board of Revenue-Scope- Collector oh recommendation of Assistant Commissioner, appointed respondent as Lambardar-Petitioner being aggrieved of the appointed filed appeal before Commissioner, which was dismissed but Board of Revenue appointed petitioner as Lambardar-High Court in exercise of Constitutional jurisdiction restored the order passed by Commissioner-Validity-Concurrent findings of fact recorded by two Courts were on record-Orders of both the forums were based on correct appreciation of facts and law and there was no misreading or non-reading material or misconstruction of law-Board of Revenue, while, exercising revisional jurisdiction, was not justified to disturb concurrent findings of fact recorded by the Courts below-High Court had rightly set aside the orders of Board of Revenue and restored orders of two forums below-Leave to appeal was refused, (pp. 1969, 1969, 1970) C&E li. It was held in NLR 2002 Revenue 87, Muhammad Amir v. Naeem Arshadi "Choice of District Collector upheld as no specific disqualification or ineligibility was pointed out against selected candidate." The learned counsel for the respondent Mr: Ishtiaq Ahmad relied on 2001 CLC 1773:- "Respondent was choice of District Collector to be appointed as Lambardar and no special disqualification or intelligibility of respondent had been pointed out against him by the petitioner the rival candidate-Choice of District Collector in selecting of Lambardar ought not to be interfered with unless any progress irregularity was found in such appointed- Order of District Collector appointing the respondent as Lambardar was upheld by Board of Revenue in revision."
Mere fact that one ownes more land than other is no ground to give preference (PLD 1959 Rev. 53).
Similarly PLD 1959 Rev. 62 states that if property of candidate is sufficient to meet Government demand, it is not necessary to ignore him because his property is less than that of other candidate.
12. It was held by Mr. Shaukat Iqbal, learned Member (Judicial-ll), Board Revenue, Punjab in R.O.R.
No. 1308/2002, Manzoor Ahmad v. Shaukat Ali "The choice of District Collector has to be given due weight while deciding Lambardari cases."
13. According to Section 11 of the Probation of Offenders Ordinance, 1960, probation order does not tantamount to eonviction:- "Effects of discharge and probation (1) A conviction of an offence, for which an order is made under Section 4 or Section 5 for discharging the offender after the due admonition or conditionally or placing him on probation shall be deemed not to be' a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the provisions of this Ordinance."
14. Main allegation against respondent Ishtiaq Ahmad is that, he is a convicted person. He has been performing duty as Lambardar since 1995, no case of embezzlement pertaining to revenue matters was ever registered, against him. A probation order was passed against him. In this connection, I would refer to various authorities and the relevant law. It was held by Mr. Tariq Yusuf, learned Member (Colonies), Board of Revenue, Punjab, in R.O.R. No. 2769/1995, Fazal Elahi v. Ali Ahmad.- "Ali Ahmad has recovered sufficient outstanding arrears of land revenue. He was appointed Lambardar by the Deputy Commissioner/Collector vide order dated 4.9.1994 and this order was upheld by the Commissioner. Regarding conviction of Ali Ahmad under Section 4 of Probation of Offender's Ordinance, I960, Section 11(2) of the Ordinance provides that the offender who is placed on probation shall in any event be disregarded for the purposes of any law which imposes any disqualification or disability upon convicted persons or authorizes or requires the imposition of any such disqualification or disability: It is thus clear that placing on probation of Ali Ahmad is not to be considered as disqualification under Land Revenue Act, 1967 for his appointment as Lambardar.
The conclusion, therefore, is that placing of Ali Ahmad on probation is no disqualification."
15. Thus the Revision Petitions Nos. 902/96 and 1317/96 are rejected and both the orders passed by the Commissioner, Sargodha, dated 15.4.1996 and order dated 18.6.1995 passed by the Deputy Commissioner, Mianwali are unheld. Mr. Ishtiaq Ahmad shall continue as permanent Lambardar of Chak NO. 14/ML, Tehsil Piplan, District Mianwali.
15. Executive District Officer (Revenue), Mianwali/the Revenue staff is directed to implement this order forthwith.