The review petition has been filed against the order dated 28.8.2012, passed by the predecessor of this Court whereby the revision petition of the respondent was accepted and the case was remanded to the District Collector, Khushab; for decision afresh.
2. The facts of the case, in brief, are as follows:--
(i) Syed Shadi Shah was the Lambatdar of Chak No, 35/DB, Tehsil Quaidabad District Khushab and he died in the year 1996. After his death the proceedings for appointment of Lambardar were initiated with the permission of the District Collector, Khushab.
(ii) In pursuing of the proceedings initiated for appointment of Lambardar, Muhammad Yaseen appointed as Lambardar by the District Collector, Khushab. The said appointment was assailed by Syed Jasarat Hussain Shah before the higher forums. The matter was pending in the Lahore High Court, Lahore, Meanwhile Muhammad Yaseen died on 13.08.2007 and the pending writ petition was disposed of on 24.02.2009. In this way, the proceedings for appointment of Lambardar on the vacant were again initiated.
(iii) The District Officer (Revenue), Khushab, appointed the present petitioner as permanent Lambardar of the said Chak vide order dated 03.08.2011.
(iv) Feeling aggrieved from the order dated 3.08.2011, the present respondent filed an appeal before the Commissioner, Sargodha Division, Sargodha, but the same was dismissed on 30.04,2012.
(v) The present respondent then assailed the above order by way of revision petition in the Board of Revenue, Punjab, which was heard by the predecessor of this Court. The revision petition was accepted and the case was remanded to the District Collector, Khushab, for decision afresh. Hence this review petition..
3. Arguments were heard on 26.02.2013 and record perused.
4. The learned counsels for the review petitioner advanced the following arguments:--
(i) The impugned order dated 28.08.2012 is against the law and facts of the case and is liable to be set aside by accepting the review-petition.
(ii) The predecessor of this Court set side the order of lower .
Court without any lawful justification and without application of independent judicial mind and failed to understand the legal status of the parties against the vacant post of Lambardar.
(iii) The petitioner has hereditary claim but the predecessor of this Court failed to consider this aspect of the case.
According t, o. the provision of Rule 17 the petitioner is entitled for 30 marks being the relative of Muhammad Yaseen, Lambardar (deceased).
(iv) The respondent has no locus standi to join the Lambaradri proceedings because in previous round of litigation he failed to participate with the same.
(v) The petitioner has superior right for appointment of Lambardar against the vacant post.
(vi) The petitioner is performing his duties of disputed post for the last five years and there is no default on his part. The inhabitants of the village in question voluntarily accepted the appointment the petitioner and they have fully confidence on the petitioner.
(vii) The predecessor of this Court did not consider the written argument submitted on behalf of the petitioner. In this view, the impugned order dated 28.08.2012 is not covered the argument submitted on behalf of the petitioner.
(viii) Both the lower Courts decided the case on merits but the remand order is the result of non- application of judicial mind.
(ix) The respondent is not a Syed one but he belongs to a Faqir family. No allegation against the present petitioner was proved but inspite of the fact, the orders of lower Courts were set aside.
(x) The finding recorded by the predecessor of this Court while passing the impugned order are not based upon law and facts of the case. He relied upon 2002 SCMR 767.
(xi) The concurrent findings of the lower Courts were disturbed by the predecessor of this Court on flimsy grounds. He relied upon 2012 SCM R 730 and PLJ 2000 SC 230.
(xii) The Commissioner, Sargodha Division, Sargodha, passed the order on merits after observing legal formalities.
(xiii) The lower Courts passed the order keeping in view the provisions of Rule 17 of Land Revenue Rules, 1968, and the provisions of notification dated 20.04.2010.
(xiv) The petitioner belongs to the majority community. He has much experience for the office of Lambardar.
(xv) He has vast experience of farming and is the permanent resident of the village.
(xvi) Lastly, he prayed that the review petition may kindly be accepted by setting aside the order dated 28.08.2012 and the orders of the lower Courts may be resorted.
5. The learned counsels for the respondent advanced the following arguments:-- i. The father of the respondent (Syed Shadi Shah) was the original Abadkar as well as the group leader of Abadkaran of Chak No, 35/DB. ii. Syed Shadi Shah performed his duties as Lambardar of the said Chak from 1952 to 1996 without any default. iii. After the death of Syed Shadi Shah, the proceedings for appointment of Lambardar on the vacant post were initiated and Muhammad Yaseen was appointed as Lambardar but he died during the pendency of the case in the High Court. Thereafter, the applications for appointment of Lambardar against the vacant post were called. iv. Three candidates remained in field and contested the case. The revenue field staff after thorough inquiry recommended the name of the present respondent as suitable candidate for the post of Lambardar and the case was forward to the District Officer (Revenue), Khushab, for further proceedings. v. During the proceedings, the District Officer (Revenue), Khushab, again sent, the case to the revenue field staff for fresh reports in view of the notification dated 20.04.2010. vi. The revenue field staff again recommended the name of the respondent as suitable candidate for the vacant post. vii. The District Officer (Revenue), Khushab, ignored the reports of field staff and appointed the present petitioner as Lambardar without any legal justification. He was bound to rebut the recommendations of the revenue field staff while passing the order dated 03.08.2011. He relied upon NLR 2006 Rev. 135. viii.During the appeal proceedings, the Commissioner, Sargodha Division, Sargodha, observed on 23.01.2012 that the fresh report of field staff is very 'necessary before amounting the judgment of the case and the case was adjourned time and again on this ground but he dismissed the appeal without awaiting the fresh report of field staff. ix. The petitioner has heredity claim being real son of deceased Lambardar. He belongs to a major/noble Syed community. He has vast experience of farming and he is fully aware of the work of office of Lambardar because he has performed is duties as Lambardar during the illness period of his father. The inhabitants of the village are not ready to pay the Government dues to the present petitioner. Majority of the inhabitants of the village is depositing the Government dues through the respondent. ix. The respondent submitted his affidavit with the contents that the present petitioner is permanent absence for the last 15 years and residing in Lahore with his family members. He relied upon number of judgments of superior Courts. The petitioner belongs to criminal family and has criminal background. He relied upon FIR No, 175, dated 13.08.2010. xi. The counsel for the respondent relied upon Mutation No, 393 & 395 wherein area meaning 19 Kanals was transferred in favour of 19 persons those are outsider but that was done by the present petitioner for showing himself member of major community. xii. The review petition does not fall within the purview of Section 8 of the Board of Revenue Act, 1957.
In this respect he relied upon PLJ 2013 Karachi 16 (DB). xiii. The predecessor of this Court rightly set aside the orders of the lower Courts and remanded the case to the District Collector, Khushab, for fresh decision. The remand order is based upon sound reasons. xiv. The review petition is not competent against the remand order because no final order was passed by the predecessor of this Court. He just remanded the case for appropriate fresh order after hearing the concerned parties xv. Lastly, he prayed that the review petition may kindly be dismissed by upholding the impugned._ order dated 08.08.2012.
6. I have heard learned counsels for the parties, gone through the review petition, perused the record, writteh arguments of the petitioner and thoroughly analyzing the orders passed by the lower Courts as well as the predecessor of this Court. After going through this whole exercise, I have come to the conclusion that the review petition is wroth acceptance. This conclusion is based upon following reasons:-- i. From the perusal of the order dated 03.08.2011, it is revealed that the District Officer (Revenue), Khushab, discussed the merits and demerits of the parties and then appointed the present petitioner as permanent Lambardar at the vacant post. The 'order. dated 03.08.2011 was passed in accordance with law and purely on merits and the District Officer (Revenue), Khushab, was not bound to follow the recommendations of the lower field staff and he rightly exercised the powers vested to him under Rule 17 of Land Revenue Rules, 1968. ii. During the appeal proceedings, the Commissioner, Sargodha Division, Sargodha, observed all the legal formalities and passed the order dated 30.4.2012 with sound reasons. The counsel for the present respondent wanted to take the advantage of technicalities but the said officer decided the appeal purely on 'merits and passed a speaking order. iii. The predecessor of this Court remanded the case for decision afresh, to the District Collector, Khushab, but the findings of my learned predecessor recorded in the impugned order dated 28.08.2012 are not based upon facts and the impugned order is not sustainable in the eyes of law. iv. The concurrent findings of two lower Courts are based upon facts but were disturbed by the predecessor of this Court while passing the remand order dated 28.08.2012.
7. In light of the above reasons, the review petition is hereby accepted by setting aside the order of the predecessor of this Court dated 28.0.2012 and the orders of District Officer (Revenue), Khushab, dated 3.08.2011, and Commissioner, Sargodha. Division, Sargodha, dated 30.04.2012, are upheld. The case file shall be consigned to the record room after its due compilation/page marking.