'ABDUL SATTAR GORAYA, J--- By means of this Constitution petition, order dated 2-5-2009 passed by the learned Senior Member, Board of Revenue, Punjab, Lahore, has been brought under impeachment.
2. Facts in brief are that Fazal Karim, petitioners' father was a permanent Lumberdar of Chak No,46/DB, Tehsil Kallur Kot District Bhakkar who joined the majority on 8-1-1999. The Collector Sub- Division Kallur Kot invited the applications to fill in the said post. Many candidates came forward to contest the said post. Eleven candidates withdrew in favour of the petitioner. The revenue field staff being son of the deceased Lumberdar recommended, in fact, petitioner's name but the District Collector vide order dated 20-6-2000 appointed respondent No,2 as permanent Lumberdar of the aforesaid Chak. Petitioner went up in appeal to challenge the order dated 20-6-2000 passed by the District Collector before the Commissioner Sargodha Division who vide order dated 14-11-2000 accepted the appeal and set aside the order of the District Collector by having held that fresh applications through proclamations may be invited and a person from the majority group should be appointed as a Lumberdar for the said Mauza. The order dated 14-11-2000 was challenged in revision before the Member Board of Revenue who accepted the revision petition of the petitioner and dismissed the revision petition of respondent No,2 through a consolidated order dated 24-12- 2001. It was held that the petitioner because of his rich experience was a fit candidate to be appointed as a Lumberdar coupled with the fact that he belongs to a majority group. Review petition was accepted and the case was remanded which order dated 9-8-2004 was challenged in Writ Petition No,2585 of 2005 by the petitioner before this Court wherein this Court held that law is firmly settled that unnecessary remand of the case should be avoided. The operative part of the order reads:--- "For the reasons noted above, the impugned order dated 9-8-2004 passed by respondent No,1 being tainted with patent illegality is declared to be void and non existent in the eye of law by accepting instant constitutional petition, with the result that Review Petition No,57 of 2002 filed by respondent No,4 shall be deemed to be pending before respondent No,1 and shall be decided afresh in the light of the observations made above on its own merits, in accordance with law.
Parties are directed to appear before respondent No,1 on 3-5-2006. There will be no order as to costs."
In post-remand proceedings, the Senior Member Board of. Revenue vide order dated 2-5-2009 accepted the review petition and restored the choice of the Collector.
3. Learned counsel for the petitioner contends that the impugned order passed in review jurisdiction was clearly without jurisdiction inasmuch as the main reasons which weighed with the learned Member Board of Revenue hardly furnished a lawful justification to reach at the impugned conclusion. It was further argued that petitioner's father was a permanent Lumberdar and even on the score of Rule 17, the petitioner being son of the deceased Lumberdar should have been appointed and not respondent No,2. It is bitterly argued that the rule of primogeniture in the case in hand has been violated.
4. Learned counsel for respondent No,2 supported the impugned order passed in review by the learned Member Board of Revenue almost for the same reasons which weighted with the Member Board of Revenue. He argued that the order is purely of administrative nature and Revenue Officers on the basis of their experience are the best judges of their choice and the interference in writ jurisdiction is not possible.
5. I have heard the learned counsel for the parties at considerable length.
6. This is common ground between the two contestants that Fazal Karim, petitioner's father, was a permanent Lumberdar. He was appointed way back in the year 1952. He died on 8-1-1999. It is stated by the learned counsel for the petitioner which fact has not specifically been denied by the learned counsel for the contesting respondent that on 8-1-1999 the village in respect of which the appointment of the Lumberdar had to be made was chiefly owned by the proprietors and not by the State. However, the documentary evidence is not available on the record to this effect except the report of the Assistant Collector that the petitioner was a person belonging to Rajput tribe who are in majority and son of the deceased Lumberdar is most suitable to run the affairs on the basis of his rich experience because in the lifetime of the deceased Lumberdar, he has been performing the duties of the Sarbrah Lumberdar. Whether the land was chiefly owned by the proprietors or by the State, the position is not clear. The post fell vacant on 8-1-1999 when the rule of primogeniture was there. The apex Court in Maqbool Ahmad Qureshi v .. The Islamic Republic of Pakistan PLD 1999 Supreme Court 484 declared the said rule of primogeniture i.e, Rule 19(2) of the Land Revenue Rules, 1968 to be repugnant to the injunctions of Islam and in the judgment in the nature of declaration, it was held that after 1-9-1999, the said rule shall ceased to exist as a valid law. All appointments prior to that date had to be made in accordance with the existing Rules. In the case in hand, the entire matter proceeded on the assumption that the case had to be decided under Rule 17 and not on the basis of rule of primogeniture. Reference :Haji Noorwarjan v. Senior Member Board of Revenue, N.-W.F.P. Peshawar and 4 others PLD 1991 Supreme Court 531. Till such time the rule of primogeniture was there, its observance was mandatory and no appointment could be made after without considering the said Rules. The case of the learned counsel for the petitioner is that he has been working as a Sarbrah Lumberdar and belonging to the majority tribe of Rajput whereas respondent No,2 is Arain by caste and only one family is living into the village. Learned counsel also stated that petitioner had been working as a Sarbrah Lumberdar in the lifetime of the deceased and he had earned rich experience to run the affairs and office of the Lumberdar. Rule 17(1) of the Land Revenue Rules, 1968 reads:--- "Rule 17. Matters to be considered in first appointment---In all first appointments of headmen regard shall be had among other matters to---
(a) the hereditary claim of the candidate;
(b) extent of property in the estate, if there are no sub-division of the estate, and in case there be subdivisions 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 the Government by him or by his family;
(d) his personal influence, character, ability and freedom from indebtedness;
(e) the strength and importance of the 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 Border.
'Rule 19. Matters to be considered in appointment of successor--- (1) In an estate or sub-division thereof, owned chiefly or altogether by Government, a successor to the office of headman shall be selected, with due regard to all the considerations, other than hereditary claims, stated in Rule: 'Provided that in such an estate or sub-division thereof, notified for the purpose by the Board of Revenue, the selection shall, as far as possible, be made in the manner prescribed by sub-rule (2) if a suitable heir is forthcoming."
'In Rule 17(1)(a), it has been provided that being son of the deceased Lumberdar this is one of the considerations but not the whole of it. In the case in hand, the position is different for another reason that the deceased died on 8-1-1999 when the rule of primogeniture was there, therefore, it was imperative for the courts below to see before making determination that as to whether the land was chiefly owned by the proprietors or by the State. If the proprietors chiefly own the land, the rule of primogeniture will follow and if the land is chiefly owned by the State, the choice will be made under rule 17 of the Land Revenue Rules.
7. Much emphasis has been laid by the learned counsel for the petitioner that the main reason, which weighed with the learned Member Board of Revenue in accepting the review petition, was that the case was registered against the petitioner on the charge of having forged Sanad of the Matriculation. It is submitted by the petitioner's learned counsel that in that case, petitioner has been acquitted of the charge and now he is holding a clean chit in his favour. Be that as it may, since the matter is being remanded, it is for the learned Member Board of Revenue to attend to this question in post-remanded proceedings.
8. This is stark reality that the learned Senior Member Board of Revenue passed the impugned order in exercise of his power under section 8 of the Board of Revenue Act. The power to exercise emanates from the Statute and therefore, it is imperative upon the Court or a Tribunal of limited jurisdiction to remain within the four G corners of the conditions laid down in section 8 ibid. The power of review can only be exercised under section 8 of the said Act if there is some substantial error apparent on the face of the record which after due diligence could not be brought on the record. Review does not permit rehearing. Reference may be made to Riaz Hussain and others v.
Board of Revenue and others 1991 SCM R 2307. The relevant portion whereof is reproduced hereunder:--- "The next submission of Mr.Khalid M. Ishaque is that the nature of the review jurisdiction conferred on the Revenue Board under section 8 of the West Pakistan Board of Revenue Act, 1957 does not permit the rehearing of the matter on merits and in adopting this procedure respondent No,1 has exceeded his jurisdiction. Section 8(1) of the Act is substantially the same as Order XLVII, C.P.C. It is well-settled principle that no Court or authority possesses any inherent jurisdiction to review its decree or order. Such power can be exercised where it has been expressly conferred by statute.
Reference can be made to Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94, Hussain Bukhsh v.
Settlement Commissioner, Rawalpindi and others PLD 1970 SC 65 and Baig H.H. Nawab Muhammad Abbas Khan Abbasi v. The Government of Pakistan and others PLD 1984 SC 67. The power to review can be exercised where there is mistake or error of law or fact apparent on the face of the record.
To find out such error one has not to scrutinize the record or evidence but it should be self-evident from a perusal of the record itself and can be pinpointed without elaborate examination. In consequential or insignificant errors which do not go the root of the matter are to be ignored but if error has material bearing on the final result of the case it can be made a ground for review. Scope of review is completely different from appeal. The review proceeds on the basis of error apparent on the record whereas in appeal all questions of fact and law are considered by the appellate Court. A bare reading of the order of respondent No,1 makes it clear that he travelled beyond the boundaries and scope of review and decided the matter as it hearing an appeal. Respondent No,1 has thus exceeded in exercise of his jurisdiction".
'Needless to state that judgment of the honourable Supreme Court will operate after 1-9-1999 and not before that. The judgment, for all purposes, was declaratory in nature by which a declaration has been granted that rule 19(2) of the Land Revenue Rules, 1968 is repugnant to the injunctions of Islam which will cease to exist after the target date and all cases before the target date shall be processed and decided on the basis of old laws. After correcting error in the judgment, the case is remanded to the Member Board of Revenue for decision afresh after getting report from the Collector Sub-Division, Kallur Kot or the District Officer (Revenue) as to whether the land was chiefly owned by the State or by the proprietors and then decide the matter, of course subject to the observations made hereinabove in this judgment.
9. In nutshell, this petition is accepted and the impugned order dated 2-5-2009 passed by the learned Senior Member Board of Revenue is declared to be without lawful authority and of no legal affect. The H matter shall go back before the Member Board of Revenue, in the terms indicated in the preceding paragraph. In circumstances of the case, there shall, however, be no order as to costs.