This order will govern W.P. No, 13870/2010 and W.P. No, 16041/2010 as orders impugned in both the petitions are same.
2. Briefly the facts of the case are that after the death of Muhammad Siddique son of Muhammad Ismail, Patti Lambardar of Chak No, 725/GB Tehsil. Kamalia, District Toba Tek Singh the post of Lambardar fell vacant whereafter the District Officer (Revenue), Toba Tek Singh accorded approval for making a fresh appointment of Lambardar. In pursuance of the above said approval, applications were invited from the suitable candidates through Mushtri Munadi to fill up the post of Lambardar. The Tehsildar, Kamalia after examining the credentials of the candidates prepared a report dated 13.2.2008 and submitted the same to the Deputy District Officer (Revenue), Kamalia wherein he recommended that Muhammad Irshad/Respondent No, 3 be appointed as Lambardar.
Saeed Ahmad (petitioner of W.P. No, 16041/2010) being aggrieved by the report dated 13.02.2008 filed an application dated 11.03.2008 before the Deputy District Officer (Revenue) with the prayer that a direction be issued to the Tehsildar for preparing a fresh report after affording an opportunity of hearing to all the candidates. The Deputy District Officer (Revenue) accepted the application and directed the Tehsildar to prepare a fresh report after recording the statements of all the applicants. In pursuance of the direction of the Deputy District Officer (Revenue), the Tehsildar, Kamalia after giving hearing to all the applicants prepared a report dated 5.6.2008 and recommended therein that Saeed Ahmad be appointed as Lambardar. The Tehsildar submitted the above said report to the Deputy District Officer (Revenue) who after endorsing the same forwarded it to the District Officer (Revenue) but he vide order dated 31.12.2008, appointed Muhammad Siddique son of Abdul Latif as Lambardar. Muhammad Irshad, Muhammad Sadiq and Saeed Ahmad, being aggrieved by order dated 31.12.2008 passed by the District Officer (Revenue), filed separate appeals before the Executive District Officer (Revenue), Toba Tek Singh. The Executive District Officer (Revenue) through a consolidated order dated 24.6.2009 set aside the order dated 31.12.2008 passed by the District Officer (Revenue) and appointed Muhammad Irshad/Respondent No, 3 as Lambardar of Chak No, 725/GB Tehsil Kamalia District Toba Tek Singh. Muhammad Siddique and Saeed Ahmad petitioners assailed the order dated 31.12.2008 through separate revision petitions under Section 164 of the Land Revenue Act, 1967 before the Board of Revenue, Punjab and the same were dismissed vide consolidated order dated 20.3.2010, hence this petition.
3. Learned counsel for the petitioner (Muhammad Siddique) in support of instant petition has contended that all the fora below have failed to apply their independent mind and have completely ignored the report of Tehsildar dated 5.6.2008 wherein it has categorically been stated that Muhammad Irshad has encroached upon the office of Farming Society; has committed embezzlement while depositing the registration fee of mutations; is involved in harbouring criminals and thus was not suitable person for the post of Lambardar. He further contended that the impugned decisions are based on the rule of primogeniture as contained in Rule 19(2) of the Punjab Land Revenue Rules, 1968 which has been declared un-islamic by the Hon'ble Supreme Court of Pakistan in the case titled Maqbool Ahmad Qureshi Vs. Islamic Republic of Pakistan (PLD 1999 SC 484) and thus the orders impugned in this petition are liable to be set aside.
4. Learned counsel for Saeed Ahmad (petitioner of W.P. No, 16041/10) while adopting the arguments of learned counsel for Muhammad Siddique to the extent of character of Muhammad Irshad has contended that a preferential aspect of Saeed Ahmad was not properly appreciated by the Executive District Officer (Revenue) and Board of Revenue while making appointment of Lambardar.
5. Conversely, the learned counsel for Muhammad Irshad son of Muhammad Siddique has supported the orders passed by the Executive District Officer (Revenue) . and the Board of Revenue, Punjab and submitted that Muhammad Irshad was found most suitable person by the Revenue Authorities and, therefore, findings to this effect cannot be substituted by this Court in exercise of constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; and, that Muhammad Irshad fulfills all the criteria as laid down in Rule 17 of the Land Revenue Rules, 1968 and, therefore, has been rightly appointed as Lambardar.
6. I have heard the learned counsel for the parties and perused the record appended with this petition.
7. Lambardars are appointed under Section 36 of the West Pakistan Land Revenue Act, 1967 read with the West Pakistan Land Revenue Rules, 1968. The Competent Authority while making appointment of Lambardar under the above said provisions of law is under an obligation to consider: (i) hereditary claims (ii) extent of property in the estate (iii) services rendered to the Government (iv) character, ability and freedom from indebtedness; and (v) strength and importance to the community to which a candidate belongs. Being conscious of the requirements of the West Pakistan Land Revenue Rules, 1968 the Executive District Officer(Revenue) while passing the order dated 24.6.2009 made a comparative assessment of the applicants which is reproduced below for facility of reference:-- S. # Descirption to be consideredIrshad Ahmad Saeed Ahmad Muhammad Siddique 1 Hereditary claim Elder son of the deceased LambardarNil Nil 2 Extent of property50 Kanals 49 Kanals 93 Kanals 3 Personal and Family services rendered to the Governments.His father was Lambardar (ii)
Appellant remained 11 years Sarbrah.
4 Personal influence, character, ability and freedom from indebtedness etc.i) Matric ii) 49 years old iii) Good physique.
Clean recordi) Middle ii) 32 years old iii) Clean recordi) Middle ii) 36 years old iii) Clean record
5. Strength and importance of communityJat Graywal Jat Saidow-Ana The data of merits of the applicants tabulated above shows that appointment of Lambardar was not made on the rule of primogeniture, as canvassed by the learned counsel for the petitioner, but instead the Executive District Officer (Revenue) and the Board of Revenue after taking into consideration all the essential factors for the appointment of Lambardar and claim of each applicant passed the orders and appointed Muhammad Irshad as Lambardar of Chak No, 725/GB Tehsil Kamalia, District Toba Tek Singh. The other contention of the learned counsel for the petitioner is that while making appointment of Muhammad Irshad as Lambardar the report of Tehsildar dated 5.6.2008 was not taken into consideration by the Executive District Officer (Revenue) and the Board of Revenue. I am afraid this contention also has no force for the reason that: firstly, no provision of law or rule requires the recommendation of the lower revenue functionaries for appointment of Lambardar; secondly, the reports of the lower revenue functionaries are not binding in character; thirdly no evidence in support of the allegations stated in the report have been placed on record; and, fourthly, Muhammad Siddique in para 2 of his revision petition (ROR 1323/2009) before the Board of Revenue has recorded the remarks "Adam Record Yafia" against the name of Muhammad Irshad and this remark negates the contention of the learned counsel for the petitioner. Thus, the report of Tehsildar dated 5.6.2008 is of no significance and does not help the case of the petitioner.
8. This Court has never substituted its view for that of the statutory functionaries particularly when it is the question of selection of Lambardar. The appointment of the Headman/Lambardar is for administrative purposes. No person can claim, as of right, to be appointed as Lambardar even he satisfies all the conditions which are laid down in Rule 17 of the Land Revenue Rules. He can still be ignored and in such a case he cannot complain that any wrong has been done for the simple reason that he does not have any vested right. In this regard reliance may be placed on 'Abdul Wahid Vs. The Member Board of Revenue Punjab, Lahore and others (1971 SCM R 719), Abdul Ghafoor Vs. The Member (Revenue) Board of Revenue and others (1982 SCM R 202), Muhammad Yousaf Vs. Member Board of Revenue and 4 others (1996 SCM R 1581) and M. Nazir Ahmad Vs. Muhammad Aslam and others (2013 SCM R 363). The Land Revenue Act is a self-contained Statute and if there are more than one candidates contesting appointment to the office of Lambardar, the person aggrieved has a right to appeal and may as well move the competent authority in Revenue. This is not on account of the fact that he had any right vested in him but only for the reason that the Statue provides for such a procedure which enables him to challenge the orders in appeal or revision. The Board of Revenue is the head of the revenue administration and is a controlling authority as per principle laid down in Haji Noorwar Jan Vs. Senior. Member, Board of Revenue, NWFP Peshawar and 4 others (PLD 1991 SC 531). The point which they have to consider is the fitness or the competency of a person as a Lambardar and not that they are adjudicating on the rights of the, parties in such matters because there is no such right involved. The principle which applies in the adjudication of right cannot be invoked in matters of this kind where something is done in pursuance of any claim or a vested right but only to facilitate the performance of administrative function. The constitutional jurisdiction of the High Court is circumscribed by Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this connection Article 199(1)(a)(ii) of the Constitution lays down that a. High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law, on an application of any aggrieved party, make an order declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a Local Authority has been done or taken "without lawful authority and is of no legal effect". Under the law the most that the High Court can do is to simply pronounce the invalidity of the order and declare that it was" without lawful authority and is of no legal effect". Beyond it, strictly speaking the High Court has no jurisdiction to issue any other direction and substitute its own judgment in the matter. The Hon'ble Supreme Court of Pakistan in the case of M.Nazir Ahmad Vs. Muhammad Aslam and others (2013 SCM R 363) has held that the High Court while considering the case about the appointment of Lambardar is not supposed to sit as a Court of appeal, but only has to examine, if there is any jurisdictions error, in the orders passed by the Revenue hierarchy and whether such orders are patently against the express provisions of law or the law laid down by the superior Courts and/or perverse, arbitrary, capricious, illogical and against the record. In the instant case the petitioner has failed to point out any violation of law and also to demonstrate any perversity or arbitrariness in the order passed by the Executive District Officer (Revenue) and the Board of Revenue, Punjab. In fact the Executive District Officer (Revenue) after making comparative assessm ent of the merit of each applicant for the post of Lambardar has appointed Muhammad Irshad as Lambardar and thus orders impugned in this petition do not warrant any interference by this Court.
9. In view of above, this petition lacks merit and is accordingly dismissed.