' ASSADUQ HUSSAIN JILLANI, J.---Through this petition, the petitioner has sought review of this Court's order dated 19-6-2013 vide which Civil Petition for Leave to Appeal No. 390-L of 2013 filed by him was dismissed and the judgment of the learned High Court passed in Writ Petition No. 7748 of 2010 was upheld.
2. Facts in brief are that on the death of Noor Muhammad Khan Lumbardar of the afore-referred Chak, the position of Lumbardar fell vacant. After hearing counsel for the rival candidates for the post, the District Officer Revenue appointed respondent Muhammad Sharif as Lumbardar on 16-11- 2001. Petitioner Muhammad Zaman filed an appeal before the Executive District Officer who allowed the same and remanded the case to District Officer Revenue Mianwali. This order was challenged in appeal before the Board of Revenue which was disposed of on 25-8-2003. Review application of respondent was dismissed on 18-5-2005. Thereafter the District Officer Revenue after hearing all the contesting candidates vide order dated 31-8-2006 appointed respondent as Lumbardar. The appeal filed against this order was dismissed on 16-1-2008 and the Member Board of Revenue dismissed the revision against the said order on 17-2-2010 and the same has been upheld by the impugned judgment of the High Court. This Court dismissed the civil petition for leave to appeal filed against the aforementioned order of the High Court vide order dated 19-6- 2013, review of which is sought.
3. Learned counsel for the petitioner seeks review on the ground that neither in the revenue hierarchy nor the learned High Court and this Court considered the comparative merits of petitioner and respondent; that respondent Muhammad Shareef is illiterate, he is 85 years of age whereas petitioner is 55 years of age; that the mandate of Rule 17 of the Land Reform Manual was not considered by the courts below; that this Court can review its order if merits of the case were not considered in the order under challenge and that the order under challenge is not sustainable in view of the law laid down by this Court. In support of the submissions made, learned counsel relied on Land Acquisition Officer and Assistant Commissioner Hyderabad v. Gul Muhammad (PLD 2005 SC 311 at 321 Para. 12) and M. Nazir Ahmad v. Muhammad Aslam (2013 SCM R 363 at 370, 371).
4. Learned counsel for the respondent, on the other hand, defended the order under review by submitting that the parameters of review jurisdiction in terms of Rule 1 of Order XXVI of Supreme Court Rules are limited; that the Court can review its order only on the grounds similar to mentioned in Order XLVI, Rule 1 of the C.P.C.; that a bare reading of the review petition would show that it has not urged the, grounds in terms of the afore-referred provisions; that this Court in exercise of its jurisdiction can neither rehear the matter nor sit as a Court of Appeal; that education is not one of the factors listed in Rule 17 of the Land Reform Manual and that the concurrent orders passed by the courts below which have been upheld by this Court in terms of the order under challenge may not be interfered. In support of the submissions made, learned counsel relied on Mst. Zohra Begum v. Muhammad Isma il (2009 SCM R. 354 at 355), Habib ul Haq @ Ajar v. Umer Gul (2009 SCM R 335), Muhammad Riaz v. The State (2011 SCM R 1019), D.R. A. Sial v. Federation of Pakistan (2011 SCM R 1194), Nasrullah Khan v. State (2010 SCM R 881), Ghulam Murtaza v. Abdus Salam Shah (2010 SCM R 1883), Maqbool Ahmed Qureshi v. Islamic Republic of Pakistan (PLD 1999 SC 484 at 494) and Bashir Ahmed v. Member Judicial III Board of Revenue Lahore (2002 SCM R 1371).
5. To appreciate the issues raised in this petition, it would be pertinent to give a brief overview of reasons which prevailed with the competent authorities in Revenue hierarchy in the orders that were not interfered with by the learned High Court and which judgment was upheld by this Court in dismissing the civil petition for leave to Appeal No.390-L of 2013.
6. As noted in the preceding paragraphs, the question of appointment of Lumbardar in Chak No.9/DB, Tehsil Piplan District Mianwali was remanded by the Executive District Officer (R) on 17-6- 2002 to the DDO (R) who on 31-8-2006 appointed Muhammad Shareef respondent as Lumbardar by observing that:- {{URDU TEXT}} {{URDU TEXT}}
7. This order was upheld by the Executive District Officer in terms of the order dated 16-1-2008 by considering arguments of all the contesting candidates. The operative part of the order is reproduced hereinbelow:-- "I have heard the arguments on both sides, and perused the written arguments. The main contention of the learned counsel for Haji Muhammad Zaman appellant is that he is son of deceased lumberdar and was eligible due to the reason the order of District Officer (Revenue)
Mianwali passed in favour of Muhammad Sharif respondent was set aside by the then E.D.O. (R)
Mianwali and the matter was taken up to the honourable High Court. The honourable High Court directed that the matter may be examined in the light of the directions of the order of E.D.O. (R)
Mianwali but the directions contained in the order of the E.D.O. (R) were not complied with.
According to merit contained in Rule 17 of the Land Revenue Act, 1967 he fulfilled all the qualities of Lumberdar and is eligible for the post of lumberdar therefore he may be appointed Lumberdar. Oh the other hand, the learned counsel for Zulfiqar Ali argued that an old candidate having bad eye sight cannot be appointed as lumberdar as well as Muhammad Sharif respondent is resident of Chak No.4/ML and he could not perform the duties of Lumberdar in Chak No. 9/ DE, because he falls in the category of absentee Lumberdar resident of some other village. It was also contended that Mr. Zulfiqar Ali is owner of 90 kanals land in the village. He is forty years old with good health and good character having good relations with the people of the area therefore he is fit for the post of Lumberdari rather than the opponents Haji Muhammad Zaman and Muhammad Sharif therefore he may be appointed Lumberdar of Chak No. 9/DB. The learned counsel for the respondent argued that Haji Muhammad Zaman is defaulter while Mr. Zulfiqar Ali is owner of only 30 kanals land, belongs to Arian Family and the Arians are not in majority and they have only six lots in the village. The learned counsel argued that Muhammad Sharif respondent is owner of 120 kanals land, he belongs to Rajput family and Rajputs are in majority in the village. There is no arrear against him since appointment, he is recovering Govt. Dues with responsibility, he is middle qualified, there is no complaint against him therefore there is no reason to remove him from the post of Lumberdari. The learned counsel argued that there is no proof that he is resident of Chak No. 4/ML. I have heard the arguments on both sides and perused the impugned orders of the lower courts as well as written arguments filed by the parties. It is found that Mr. Muhammad Sharif is working as Lumberdar since 2000. He is not defaulter of Govt. Dues nor there any complaint against him therefore at this stage, I also feel no reason to remove him from the post of Lumberdari. Both the appeals are rejected and impugned order is upheld."
8. The learned Member Board of Revenue dismissed the revision petition against the afore- mentioned concurrent orders vide order dated 17-2-2010. While dismissing the constitution petition in terms of its order dated 10-12-2012, the learned High Court was persuaded by the fact that the respondent authorities had passed the orders with jurisdiction; that there was no jurisdictional defect and that the authorities in revenue hierarchy had attended to all the objections of the petitioner, examined the record and found respondent Muhammad Shareef suitable to be appointed as Lumberdar. In dismissing the civil petition, this Court found that the Board of Revenue had concurred with the orders of the revenue authorities with a reasoned order; that those authorities had considered the comparative merits of the candidates and that "no illegality or jurisdictional defect has been pointed out by the learned counsel which could persuade us to interfere with the orders passed. In the face of these concurrent findings in the revenue hierarchy any interference in Constitutional jurisdiction without there being a valid ground would have amounted to substitution of those orders by the High Court, which would not have been tenable in law."
9. We are seized of a review petition and not an appeal. The scope and ambit of power of this Court while exercising review jurisdiction in terms of Order XXVI, Rule 1 of Supreme Court Rules has been a subject of comment before this Court and in Noor Hassan Awan v. Muhammad Ashraf (2001 SCM R 367), this Court reiterated the principles laid down by it which are as follows:-- "(i) That every judgment pronounced by the Supreme Court is presumed to be a considered solemn and final decision on all points arising out of the case;
(ii) that if the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie;
(iii) that the fact the view canvassed in the review petition is more reasonable than the view which found favour with the Court in the judgment/order of which review is sought, is not sufficient to sustain a review petition;
(iv) that simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie;
(v) that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;
(vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case, a review petition would lie;
(vii) that the power of review cannot be invoked as a routine matter to rehear a case which has already been decided nor change of a counsel would warrant sustaining of a review petition, but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility;
(viii) that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good;
(ix) that the Court is competent to review its judgment/order suo motu without any formal application;
(x) that under the Supreme Court Rules, it sits in divisions and not as a whole. Each Bench whether small or large exercises the same power vested in the Supreme Court and decisions rendered by the Benches irrespective of their size, are decisions of the Court having the same binding nature."
10. Petitioner has to build his case in review within the parameters laid down by this Court in the preceding paragraph. Although petitioner's learned counsel has not specifically urged the ground in the body of the petition that the order under challenge is reflective of any error apparent in the face of record, this Court having heard detailed arguments would have interfered if it found that the order under challenge suffers from such an infirmity. The foundational argument of petitioner's learned counsel has been that the comparative merit of petitioner and respondent was neither considered by the revenue authorities nor by this Court. We find that in Para 2 of the order dated 31-8-2006 passed by the District Officer Revenue in post-remand proceedings, there is a detailed narration of arguments addressed by counsel for both the parties and it was only after considering the submissions made before it as also after examining the record and the reports of the officers in revenue hierarchy, the District Officer appointed respondent Muhammad Shareef as Lumberdar.
The said officer was of the view that the reports of Tehsildar and Assistant Commissioner Piplan were in favour of Muhammad Shareef; that the latter held more land than petitioner Muhammad Zaman; that petitioner was found to be defaulter; that respondent was acting as Lumberdar since 2000 (which according to learned counsel should have been 2010); that he was not a defaulter. In the grounds of appeal filed against the afore-referred order of the District Officer Revenue before the Executive District Officer, Mianwali, there was no challenge to the finding of fact rendered by the District Officer in favour of respondent that he had more land in the said Chak as compared to petitioner and the other rival candidate Zulfiqar Ali; that he was not a defaulter; that he was resident of Chak No. 9/DB; that he had been working as Lumberdar since 2000 and that there had been no complaint against him whatsoever. These findings of fact were upheld by the Executive District Officer (R) on 16-1-2008. The Board of Revenue dismissed revision petition filed by the petitioner against the order of the Executive District Officer (R) by a reasoned order and held as follows:-- "After detailed arguments all the candidates were called to appear in person in this court.
Muhammad Sharif was, found maintaining good health and working as Lambardar for the last ten years without any problem or complaint against him. Both the counsel for the petitioners raised only one objection that Muhammad Sharif was an absentee but according to field reports he was residing in Chak No. 9/DB Tehsil Piplan when DO(R) Mianwali appointed him as Lambardar of the Chak in 2001 and in 2006. In view of the above, both the revision petitions do not stand on their feet and same are dismissed being without any force."
11. The learned High Court had deferred to the three concurrent orders in the revenue hierarchy as it found that neither there was any jurisdictional defect nor those were violative of any legal provision. This Court upheld the judgment of the High Court and by relying on the law laid down by this Court in Noorwar Jan v. Senior Member B.R. N.-W.F.P. (PLD 1991 SC 531 at 538), Rahim Shah v. The Chief Election Commissioner of Pakistan etc. (PLD 1973 SC 24), Muhammad Rafique v. Nazir Ahmed (2007 SCM R 287) and Muhammad Saeed v. Ghulam Sarwar (PLD 2008 SC 1586), it found that the competent authorities had duly considered the comparative merits of the petitioner and respondent Muhammad Shareef and no illegality or jurisdictional defect was pointed out by petitioner's learned counsel. The argument that this Court should interfere as merits of petitioner's case had not been considered either by the three authorities in revenue hierarchy or by the High Court was neither specifically raised in the body of the civil petition for leave to appeal (No. 390-L of 2013) nor is it borne out from the record. Because the first order passed in post-remand proceedings i.e. Order dated 31-8-2006 shows that the District Officer Revenue had discussed in detail the arguments of counsel for the respective candidates and the operative part of the order precedes with a note that the order was..Being passed after considering the arguments, the record and the reports of the concerned revenue officers. Even in the last order passed in the revenue hierarchy i.e. The order of the Board of Revenue dated 17-2-2010 dismissing petitioner's revision, the Member Board of Revenue specifically observed that the counsel for petitioner had raised only one objection against the appointment of respondent i.e. He was an absentee but according to him, as per field reports, "he was residing in Chak No.9/DB Tehsil Piplan when DO(R) Mianwali appointed him as Lamabardar of the Chak in 2001 and in 2006." The petitioner in the body of the writ petition filed before the High Court did not challenge the afore-referred finding of the Member Board of Revenue that the other grounds had not been agitated by the petitioner before the Board of Revenue nor did he challenge the finding that at the time of appointment, respondent was residing in Chak No. 9/DB. Petitioner ought to have challenged the afore-referred finding that even at the time of his appointment as Lambardar in 2001, respondent was not residing in Chak No.9/DB.
12. So far as the arguments of petitioner's learned counsel with regard to the ground of petitioner's hereditary claim or having better education with reference to Rule 17 of the Land Reform Manual are concerned, a brief reference to the said Rule would be in order which has a mandate vide Notification No. 881-2010/397-LR-II dated 20th of April, 2010 and reads as follows:-- "R.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 claims of the candidate;
(b) Extent of property in the estate, if there are no sub-division of the estate, and in case there be sub-divisions 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 the Border."
13. The factors referred to in Rule 17 are guidelines and the Revenue Officers have to keep these guidelines in mind along with other factors while selecting a suitable person amongst the candidates as Lumbardar. The above Rule starts with an endorsement that, "In all first appointments of headmen regard shall be had among other matters to." In M. Nazir Ahmad v.
Muhammad Aslam (2013 SCM R 363), while adverting to the qualifications or disqualifications of a candidate of Lumbardar, this Court observed as follows:- "As per the settled law, lambardari is an administrative post of its own kind, which has the colour and tinge of any honorary post and assignment, in any case it is neither in the nature of government service nor a profession or an avocation having any nexus to an office of profit such a drawing salary etc. From the government exchequer (Note: may be some monetary benefits etc. Can be said to be attained by the Lambardar directly or indirectly by virtue of his office), it is also not a vested right of a person to be appointed as a Lambardar, rather the revenue authorities, for the purposes of assigning certain responsibilities to a person in the Chak, make a selection as per the criteria set out in rule 17 of the Land Revenue Rules and to find the most suitable candidate for the job who could capably discharge the duties inter alia in terms of rule 22 of the rules ibid. As the entire effort of the revenue authorities in this behalf should be to find out and locate the most suitable person for the job, because no one, as mentioned above, has a vested right to the appointment, rather a Lambardar is saddled with certain responsibilities in connection with the collection of the land revenue, Abiana and other government dues etc. Therefore, for choosing the best available person, on whom trust can be reposed, the condition and requirement of qualifications in strict terms, which may otherwise be adhered to in some other kinds of recruitments in the government service etc. Especially in relation to and by a given and a specific date meant for applying for such posts/appointments, should, not be strictly followed in the lambardaii matter."
14. In Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan (PLD 1999 SC 484), this Court dilating on the hereditary claim in terms of Rule 17 of the Land Reform Manual reiterated the principle laid down in Ghulam Hussain v. Ghulam Muhammad (1976 SCM R 75) wherein it was held as follows:-- "The argument of the learned counsel was that the petitioner being nearer consanguine compared to the respondent was "nearest eligible heir", and a such bad the right to be appointed Lambardar in competition with the respondent. The argument in our opinion is misconceived. On its proper construction far from conferring any right much less a legal right, the rule a best in directory which provides a guideline for the choice of the successor Lambardar, the whole object being to appoint a person in the opinion of the appointing authority the most fit person from among eligible under Rules. It would be wrong to impart greater efficacy to the above rule.
Moreover, fitness cannot be judged by any objective standard: it is primarily a subjective process, in which the opinion of the appointing authority is the crucial factor. Even on general principles, the appointment rests in the discretion of the graded hierarchy of Revenue officers created by the West Pakistan Land Revenue Act, who because of their experience and training are better qualified to make the choice than the Courts of general jurisdiction. In such cases, the matter is not to be approached as if it were a dispute relating to property or franchise."
15. The argument that petitioner is F.A. And respondent is Middle pass and therefore be given preference is not tenable in law: first, because Rule 17 of the Land Reform Manual does not list it as one of the factors to be taken into account; second, the level of education of a candidate could be one of the considerations which the revenue officer may keep in view at the time of appointment of a Lambardar. It is, however, the totality of qualifications, virtues and experience of candidates which should ultimately weigh in the process. In Bashir Ahmed v. Member (Judicial-III), Board of Revenue, Punjab, Lahore (2002 SCM R 1371), the argument with reference to educational qualification was considered by this Court and held as follows:- "It is evident from the above observations that the respondent was not a defaulter at the crucial stage and there is nothing on the record to lend support to the contention that he was a defaulter at the time of seeking appointment as Ltimberdar. The education-related contention is misconceived inasmuch as rule 17 of the West Pakistan Land Revenue Rules, 1968 is altogether silent on the subject. It appears that the respondent was given preference over the petitioner mainly for the reason that he had worked as temporary Lumberdar from 1978 to 1991 to the entire satisfaction of the authorities concerned. Consequently, we find no substance in this petition which is accordingly dismissed and leave refused."
16. Reference by learned counsel for the petitioner to a judgment of this Court in Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs (PLD 2005 SC 311) is misplaced as in the said case, this Court set aside the order of the High Court which had dismissed the review petition and allowed the review prayer as it found that mandatory provisions of section 25(1) and (3) of the Land Acquisition Act had been misconstrued and the enhancement of rate of compensation was made in derogation of the principle of law laid down by the Supreme Court. No similar illegality or error apparent in the face of record has been pointed out by the learned counsel for the petitioner.
17. Petitioner's learned counsel worked hard and ably argued his case. But the arguments made in substance were an attempt to re-open the entire case which is not tenable in review jurisdiction. In Habib ul Hague @, Ajar v. Umer Gul through L.Rs (2009 SCM R 335), this Court dismissed the review application as it found that:-- "The petitioner cannot be allowed to reopen the case under the umbrella of review petition and his learned counsel cannot be permitted to reargue the case. Reference can be made to Mst. Kabir- un-Nisa and another v. Settlement Commissioner (Lands) Lahore and 3 others 1975 SCMR 493.
This Court after taking into consideration every aspect of the case and taking conscious and deliberate decision on points of facts and law dismissed petitioner's civil petition. Neither there is any mistake or error apparent on the face of record nor discovery of a new and important matter or evidence, which is sine qua non for exercise of review jurisdiction of this Court. In this behalf reference can be made to Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363, Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1997 SC 865, Mst. Kalsoom Malik v. Assistant Commissioner 1996 SCMR 710 and Daewoo Corporation v. Zila Council Jhang 2004 SCMR 1213."
18. For what has been discussed above, we do not find any merit in this review petition which is accordingly dismissed.
Revision .