' HAFIZ ABDUL REHMAN ANSARI, J.---Through this constitutional petition petitioner has called in question the order dated 4-5-2009 passed by respondent No,1 by which order the learned Member (Judicial-I), Board of Revenue accepted a review petition set aside order dated 4-12-2007 passed by his predecessor Member (Judicial-I), Board of Revenue, Punjab, Lahore.
2. The brief facts of the instant case are that Muhammad Rafique was permanent Lumberdar of Chak No,47/10-R Tehsil Khanewal. On the demise of Muhammad Rafique District Officer (Revenue), Khanewal vide his order dated 4-12-2004 granted permission for construction of file for appointment of new Lumberdar. The Tehsildar Khanewal invited applications from the interested landowners vide order dated 25-1-2006. Eighty six persons applied for the post of Lumberdar which became vacant on account of demise of Muhammad Rafique. The Tehsildar Khanewal summoned all the applicants for their interviews. Twenty five applicants withdrew their applications in favour of Abid Khan son of Ameer Khan twenty four applicants withdrew their applications in favour of Waheed Akhtar son of Akhtar Shah, respondent No,2. Twenty two applicants did not appear before the Tehsildar, therefore, their applications were rejected at preliminary stage. In this way only fifteen candidates were contestants for the post of Lumberdar. The District Officer (Revenue) has observed in his order dated 25-1-2006 that it is worth mentioning that none of the legal heirs of Muhammad Rafique deceased Lumberdar applied for the appointment of Lumberdar. Tehsildar Khanewal in his comprehensive report dated 19-3-2005, discussed all the remaining petitioners are recommended that Waheed Akhtar Shah is suitable candidate for the appointment of Lumberdar.
Deputy District Officer (Revenue) agreed to above said report dated 19-3-2005 and sent it to District Collector for appropriate orders after hearing the existing candidates. District Officer (Revenue) District Collector, Khanewal after hearing the applicants and perusing the report after considering the same passed order dated 25-1-2006 and appointed Waheed Akhtar shah as permanent Lumberdar of Chak No,47/10-R Tehsil Khanewal. The present petitioner on 28-1-2006 filed an appeal before Executive District Officer (Revenue). The Executive District Officer (Revenue ) allowed the appeal of the petitioner and set aside the order dated 25-1-2006 and appointed the present petitioner as Lumberdar of Chak No,47/10- R. The respondent No,2 Waheed Akhtar Shah filed revision petition bearing ROR No,51 of 2007 on 15-1-2007 in the Board of Revenue Punjab, Lahore. The Member (Judicial-I), Board of Revenue (Zafar Iqbal), vide order dated 4-12-2007 dismissed the same. Thereafter respondent No,2 on 16-7-2008 filed a review petition which was heard by his successor Member, Muhammad Aslam Hayat, Member (Judicial-I), Board of Revenue Punjab, Lahore who vide order dated 4-5-2009 accepted the review petition and set aside order dated 4-12-2007 passed by his predecessor Member Judicial-I, Board of Revenue, Punjab, Lahore, maintained the order dated 25-1-2006, passed by District Officer (Revenue).
3. On 8-5-2009 notice was issued to respondent No,1 to file report and parawise comments which is reproduced as under:-- "Learned counsel for the petitioner contends that District Officer (R), Khanewal had appointed the petitioner as Lumberdar, however, this order was set aside by the EDO(R), Khanewal. Then the Member (Judicial-I), Board of Revenue, Punjab had upheld the order of the EDO (R). Learned counsel further contends that review petition was filed after the expiry of the statutory period and case of the petitioner could not be permitted to be reopened in exercise of powers under section 8 of West Pakistan Board of Revenue Act, 1957.
2. Points raised need consideration. Let a copy of this petition be handed over to the learned Additional Advocate-General, Punjab, who shall transit the same to respondent No,1, who is directed to file report and parawise comments within a period of two weeks. Relist on 3-6-2009.
' C.M.No,1/09.
3. C.M. Is allowed subject to all just and legal exceptions, C.M. Disposed of. C.M. No,2/09.
4. Subject to notice, till the next date of hearing, status quo shall be maintained."
4. Report and parawise comments were called from respondent No,1 which has been filed by respondent No,
1. In the comments respondent No,1 has not filed reply with regard to question of limitation, whether review petition was time-barred or not.
5. Learned counsel for the petitioner contends that District Officer (R), Khanewal had appointed respondent No,2 Waheed Akhtar Shah as Lumberdar on 25-1-2006. This order was questioned In appeal before the Executive District Officer (R), Khanewal who accepted the appeal of the petitioner on 4-12-2007. This revision was filed before the Member (Judicial-I), Board of Revenue, Punjab, Lahore who upheld the order of Executive District Officer (R) dated 4-12-2007 and subsequently review petition was accepted and the order passed by the Member (Judicial-I), was set aside and review application was accepted. Learned counsel contends that review application was the ditto copy of Revision Petition No,51 of 2007. In the review petition no error or mistake was pointed out which was committed by the earlier Member (Judicial-I), who passed order dated 4- 12-2007, the B order which was reviewed by the subsequent order i.e, 4-5-2009 passed by the successor Member (Judicial-I). Learned counsel further contends that review petition was hopelessly time-barred. Learned counsel submits that the review petition was filed on 16-7-2008 while the order passed by Member (Judicial-I) in ROR No,51/07 was passed on 4-12-2007 and it was hopelessly time-barred. No application for condonation of delay was filed along with the review petition and the Member, Board of Revenue (Judicial-I), who accepted the review petition did not discuss this aspect of limitation in his order dated 4-5-2009. Learned counsel for the petitioner made reliance on "Muhammad Ashraf v. Bost Muhammad" 1981 SCMR 383(b), in which case it is observed that succeeding member though competent to review, cannot review order passed by his predecessor simply because another view could be taken. Learned counsel submitted that in the review order no patent error or illegality is mentioned which was pointed out in the previous order dated 4-12-2007 which was reviewed. Learned counsel further submitted that the grounds on which review was sought related to merits of case, case could not be permitted to be reopened in exercise of powers under section 8 of West Pakistan Board of Revenue Act 1957; that power to review under section 8 of the West Pakistan Board of Revenue Act 1957 being limited, MBR was not competent to set aside the order passed by his predecessor and substitute it by his own order. In this regard he relies upon "Muhammad Amin and 7 others v. Member (Consolidation), Board of Revenue, Punjab and 3 others" 1992 CLC 2338(a), (b), (c), "Nasim Ahmad Kharal and 4 others v.
Board of Revenue. Sindh and 2 others" PLD 1979 Note 82 P. 57 "Muhammad Din and 2 others v.
Muhammad Amin and 8 others" PLD 1994 SC 288, "Khan Muhammad and others It Member Board of Revenue and others" PLD 2006 Lah. 615, Sh. Mehdi Hassan v. Province of the Punjab through Member, Board of Revenue and 5 others" 2007 SCMR 755, Water and Power Development Authority through Chairman WAPDA, Lahore and 6 others v. Khalid Pervez" PLD 2006 Lah. 611, and Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307 (b). Learned counsel vigorously argued that the order in review dated 4-5-2009 is illegal, without lawful authority, abuse of power should be set aside and order passed by Member, (Judicial-I) dated 4-12-2007, may kindly be restored.
Learned counsel further submits that F.I.R. No,445/2008 was also got registered against respondent No,2 Waheed Akhtar Shah son of Akhtar Shah which also disentitles him for the appointment of Lumberdar.
6. Conversely learned counsel for the respondent, Waheed Akhtar submitted that choice of District Collector for the appointment of Lumberdar is to be maintained. He placed reliance on "Muhammad Rafiq v. Nazir Ahmad and others 2007 SCMR 287. He submitted in the present case District Officer (Revenue) vide his order dated 25-1-2006 after dealing with the matter comprehensively and taking into consideration all the aspects and the report of the Tehsildar Khanew al recommended the case of appointment of Lumberdar in favour of Waheed Akhtar Shah respondent who had rightly been appointed by District Revenue (Officer). Executive District Officer (Revenue) wrongly accepted the appeal of the petitioner had set aside the order passed by District Officer (Revenue). He further submitted that learned Member Board Of Revenue by passing his order dated 4-12-2007 has mistakenly and illegally confirmed the order dated 26-12-2006 of the Executive District Officer (Revenue) which being contrary to the abolition of hereditary claim of a candidate for appointment of Lumberdar by virtue of the law declared by the Honourable Supreme Court of Pakistan in "Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 wherein provisions of Rule 19(2) of the West Pakistan Land Revenue Rules 1968 relating to claim on the basis of inheritance and Rules 25 and 26 on this ground have been declared repugnant to injunctions of Islam. Learned counsel submitted that order dated 26-12-2006 of the Executive District Officer (Revenue) was illegally confirmed vide the revisional order dated 4-12-2007 passed by Member Board of Revenue which was not sustainable on the basis of law declared by the Honourable Supreme Court of Pakistan. Learned counsel for respondent No,2 supported the order passed by successor Member Board of Revenue in review petition dated 4-5-2009. Learned counsel for respondent No,2 vehemently argued that while arguing the case on behalf of the petitioner before the Member Judicial-I in review petition. The petitioner did not raise the objection which he has raised now about the competency of review and with regard to limitation, now he is estopped to raise the same. Participation of the writ petitioner in the review proceedings before the Member Board of Revenue without raising objection on review petition amounts to acquiescence on the part of writ petitioner, he is estopped to raise those questions, first time in writ petition.
Learned counsel for the respondent contended that time in obtaining the certified copy of order dated 4-12-2007 which was sought to be reviewed should be calculated under the Limitation Act and the review petition was within limitation. After calculating the time spent in obtaining the certified copy of order dated 4-12-2007, the review petition was within limitation. He contended that this writ petition has no merit review petition was accepted rightly by the Member Judicial-I vide order dated 4-12-2007 and this petition should be dismissed. Rebutting the registration of case against Waheed Akhtar learned counsel for the respondent submitted that he was acquitted in the said case. Learned counsel contended that petitioner was appointed Lumberdar by the EDOR under section 17 of Rule of Primogeniture which is declared repugnant to injunctions of Islam by Honourable Supreme Court of Pakistan in case "Ghulam Mohy-ud-Din v. Chief Settlement Commissioner Pakistan, Lahore" PLD 1964 829. In similar case in review on settlement side objections were raised in the review petition. Muhammad Hussain Munir and others PLD 1974 SC 139 v. Sikandar and others. In the said citation question of jurisdiction if an authority who is competent to decide whether he decide rightly or wrongly. Senior learned counsel states that Board of Revenue is also a Tribunal in this respect so against a judgment of a Tribunal, writ jurisdiction cannot be exercised. Section 8 subsection (2) of the West Pakistan Board of Revenue Act, 1957 provides a limitation of 90 days for filing the review. Section 29 of the Limitation Act subsection (2) of the Limitation Act 1908 states that section 8 of the subsection (2) of the Board of Revenue Act 1957 90 days limitation is provided in this Act for review. By virtue of subsection (2) of section 12 of the Limitation Act 1908, time spent in obtaining the certified copy of the order passed by Member, Board of Revenue, sought to be reviewed that period spent for obtaining the certified copy will be excluded. Learned counsel submits that if the calculation is made in accordance with these provisions the application of review of the respondent was very much in time within limitation of 90 days.
7. I have heard the learned counsel for the parties at length and perused the record.
8. District Officer (Revenue), Khanewal vide order dated 25-1-2006 after obtaining reports from the Revenue Officer in the light of is commendations made by them although appointed respondent No,2 as Lumberdar of Chak No,47/10-L, Khanewal. The said appointment order of District Officer Revenue was assailed in appeal. The Executive District Officer Revenue vkle order dated 26-12-2006 accepted the appeal of Abid Khan, present petitioner. In this appellate order detailed discussion has been made on the merits and demerits of the petitioner and respondent No,2 for appointment of Lumberdar. The Executive District Officer (Revenue) has discussed pros and cons of each aspect of the case with regard to education, efficiency, and family background. The E.D.O.R. In his order dated 26-12-2006 has held that petitioner Abid Khan son of Amir Khan is permanent resident of Chak No,47/10-R District Khanewal. He is a retired teacher and is owner of a land measuring 68 Kanals, 16 Marlas although the appellant is Matriculate, 40 to 46 Families of Jat Pahor in the Chak of two Patti one Patti is with the Pahor family for the last 40 years earlier and Amir Khan son of Azam father of the petitioner-appellant was Lumberdar. On the demise of Amir Khan son of Azam Khan, Muhammad Rafique deceased was appointed since three generation the Lumberdari is in the Pahor family. Muhammad Rafique deceased Lumberdar had no male issue on account of that the whole family members favoured the appointment of Abid Khan son of Amir Khan as Lumberdar.
The E. D.
0. (Revenue) also observed in his order that after the demise of Abid Khan son of Amir Khan took into possession the Dhal Bash of Kharif 2004-2005 and deposited the revenue. It is further observed by the E.D.O. (Revenue) that Abid Khan son of Amir Khan is fully acquainted with the affairs of Lumberdar and he is owner of sufficient land for `Zar-e-Birth'. The higher education of the respondent ownership of land of the respondent is no ground for his appointment as Lumberdar.
E.D.O. (R) held that after the demise of Muhammad Rafique appellant Abid Khan is working satisfactorily. He observed that although Tehsildar made report dated 19-3-2005 in favour of respondent No,2 but the D.D.O.R. Khanewal in his report dated 21-7-2009 has not recommended the name of any candidates for the appointment of post of Lumberdar. The important thing which is pointed out in the order of E.D.O.R. Is that respondent No,2 Waheed Shah is not permanent resident of Chak No,47/10-R. He is permanent resident of Khagha House No, 95/1-Civil Line, Khanewal city.
The respondent No,2 just to participate in the election got entered his name in Chak No,47/10-R in voters list bearing vote No,244 while not a single other member of the family sisters, parents, wife are not in the voters list, as such, an absentee of Chak No,47/10-R Tehsil Khanewal cannot be appointed Lumberdar of the Chak of which he is not the resident. He declared the petitioner to be entitled for appointment of Lumberdar wrongly. Shari and on merit declared the petitioner entitled for the appointment of Lumberdar. On these grounds the E.D.O.R. Accepted the appeal of the petitioner. The same order was upheld by the Member, (Judicial-I) Board of Revenue, Punjab, Lahore vide order dated 4-12-2007. Order passed by E.D.O (R) is elaborate, based on cogent reasons and rightly upheld by Member, D Board of Revenue vide order dated 4-12-2007, which order was later on set aside accepting review petition on 4-5-2009 which review petition was filed on 16-7-2008.
9. The order dated 4-12-2007 passed by learned Member Board of Revenue is mechanical order, by which, order passed by Executive District Officer (Revenue), Khanewal dated 26-12-2006 was upheld dismissing the revision petition filed by respondent Waheed Akhtar. Learned Member, Board of Revenue has not given reasons for upholding the order dated 26-12-2006 and has not applied his judicial mind to the facts of the case. Conversely order dated 4-5-2009 passed by successor Member, Board of Revenue, reviewing the order dated 4-12-2007 vide his order dated 4-5-2009 accepting the review petition of respondent No,3 Waheed Akhtar Shah is also a mechanical order.
The learned Member, while accepting the review petition did not point out any illegality or mistake in the order dated 4-12-2007. The learned Member who accepted the review petition did not advert to the point of limitation in the reply and parawise comments filed in this writ petition. As such, in my opinion both those orders dated 4-12-2007 and 4-5-2009 are not sustainable in the eyes of law. Both these orders are hereby set aside and case is remanded back to Senior Member Board of Revenue who will decide afresh. R.O.R. No,51 of 2007 titled Waheed Akhtar Shah v. Abid Khan. Till de novo decision of R.O.R. No,51 of 2007 titled Waheed Akhtar Shah v. Abid Khan, order dated 26-12- 2006 passed by Executive District Officer (Revenue), Khanewal will hold the field.