Case unfolded through the present petition is that after the demise of Qadir Bakhsh, father of Muhammad Ali, Respondent No. 1, who was a Lumberdar of Village Tibbi Mehtab Singh, Tehsil Chunian, District Kasur, Respondent No. 1 was appointed as permanent Lumberdar in 1986.
Petitioner on 12.4.2006 moved an application before Tehsildar, Chunian District Kasur that Respondent No. 1 is an absentee from the village for the last 14/15 years and, therefore, he is not entitled to retain the post of Lumberdar. He also made a prayer in the said application that he may be appointed, as Lumberdar in place of Respondent No, 1.
2. Thereupon, reports were requisitioned from the revenue, functionaries, whereafter, vide order dated 05.7.2006 District Officer (Revenue)/District Collector, Kasur (DOR), after hearing the parties and on the acknowledgement of Respondent No. 1 that he is residing in Kanganpur due to education of his children and his name is also reflected in the voter list of the said area, held that he is not entitled to retain the post of Lumberdar. Thereafter, vide order dated 22.7.2006 petitioner was appointed as Lumberdar of said village. Feeling aggrieved, Respondent No. 1 approached Executive District Officer (Revenue), Kasur through an appeal, which was accepted vide order dated 18.3.2008 and the order passed by the DOR dismissing Respondent No. 1 was set aside.
Aggrieved of this order, petitioner approached Board of Revenue through a revision petition, which also met the-same fate and was dismissed; hence this petition.
3. Learned counsel for the petitioner contends that his total case rests on the fact that Respondent No. 1 has shifted his residence from the village, of which he was appointed as Lumberdar, therefore, he is not entitled to retain the said post. He further avers that during the course of hearing before the DOR, Respondent No. 1 himself admitted that he has shifted his residence to Kanganpur and his name is also reflected in the Electoral Roll of the said area. He has drawn my attention to a certificate issued by Nazim of the area, which certifies that the said respondent is residing in Kanganpur. He has also alleged that the land, which was owned by Respondent No. 1 in the village, has been leased out to a tenant, who has been receiving land revenue in place of Respondent No.
1. In order to support his arguments, he has relied on Muhammad Yousaf v. Member Board of Revenue and 4 others (PLJ 1996 SC 1288).
4. Conversely, learned counsel for Respondent No. 1 has argued that both the Courts below have rightly decided in his favour after considering all necessary material. He has also argued that there is no complaint against him regarding absence, because of which further proceedings could have been initiated against him. He further argues that under Rule 18 of the West Pakistan Land Revenue.
Rules, 1968, absence of a Lumberdar from the village is not a ground for cancelling the appointment of a person as a Lumberdar. In the end, he argues that in cases of appointment of Lumberdar, High Court shall desist from exercising its extraordinary jurisdiction in such like cases.
He relies on Abdul Wahid v. The Member Board of Revenue, Punjab, Lahore and another [1971 SCMR 7191, Muhammad Warrayam v. Member Board of Revenue, Punjab, Lahore and 3 others [1972 SCM R 354], Abdul Ghafoor v. The Member (Revenue), Board of. Revenue and anotherp1982 SCM R 202], Sharaf Din v. Qazi Abdul Jalil and another [1986 SCM R 1368], Muhammad Ramzan v. Member (Revenue), Board of Revenue and others [1989 SCM R 614], Sardar Muhammad v. Muhammad Haftz and another [1989 SCMR 1941(1)], Shaukat Ali and another v. Muhammad Shafi and 2 others [1991 SCM R 1504], Muhammad Rafique v. Nazir Ahmed and others [2007 SCM R 287] and Haji Muhammad Zaman Khan v. Member BOR Punjab, Lahore and others [2013 SCM R 1595].
5. Learned Law Officer adopts the arguments advanced by learned counsel for Respondent No.1.
6. I have heard the learned counsel for the parties and have gone through the available record.
7. The only allegation raised against Respondent No. 1 was that for the last 14/15 years, he is an absentee from the village, therefore, he is disentitled to hold the post of Lumberdar. Upon this allegation, reports were sought and after hearing both the parties and in view of admission made by him before the DOR that he is residing in Kanganpur because of education of his children and his name also appears in the voter list of the said area, because of which DOR decided in favour of the petitioner. The Executive District Officer (Revenue), Kasur (EDO) while reversing the finding of DOR has not considered the evidence led before the DOR or the stance taken by Respondent No.
1. The finding rendered by the EDO reflect that he is not impressed with the single factor (absence from the village) to be sufficient for cancelling the appointment of Respondent No.
1. He has rendered a finding to the effect that Respondent No. 1 is not an absentee. In this regard, he has placed reliance on record of rights in favour of Respondent No. 1 and the voter list of Village Tibbi Mehtab' Singh, Tehsil Chunian. He has not considered the effect of lease of land owned by Respondent No. 1 to a tenant and incorporation of the name of the said respondent in the voter list of Kanganpur. I am of the view that in case EDO was to render a finding about residence of Respondent No. 1 in a particular area, he had to consider all the necessary documents, which he failed to do so. The effect of documents produced by petitioner and the admission made by Respondent No. 1 has not been seen.
8. Similarly, the Member Board of Revenue has brushed aside the order passed by the District Collector to be sketchy and nonspeaking. He has further observed that as a finding has been given by the EDO on the basis of documentary evidence that Respondent No. 1 is the permanent. Resident of the village, therefore, revision is not maintainable. As mentioned above, he has not considered the allegation and evidence provided thereupon by the petitioner, which he needed to consider and distinguish. He in a cursory manner has dilated upon the fact that once the appointment of Respondent No. 1 was cancelled, no fresh applications were summoned or publicity made for appointment of new Lumberdar but has not rendered a finding to that effect. Both. The Courts below at least should have given reasons for accepting the stance of Respondent No. 1, which they in a sketchy manner relied upon.
9. As regards the objection raised by learned counsel for Respondent No. 1 as well as the learned Law Officer that absence is not one of the valid grounds for dismissal of a Lumberdar. The provision of Rule .18(2) of the West Pakistan Land Revenue Rules, 1968 clearly show that absence from the estate is one of the grounds for dismissal of a Lumberdar. For convenience, the said provision is reproduced below: "18(2) A headman may be dismissed when--
(a) ..................
(b) ........................
(c) Owing to age or physical or mental incapacity, or absence from the estate, he is unable to discharge his duties; or
(g) ................................
(Underlining is mine)
10. From the above provision, it is clear that absence from estate is a ground for dismissal of a Lumberdar. In this regard, reliance can also be placed on a judgment reported as Muhammad Yousaf v. Member, Board of Revenue and 4 others [1996 SCM R 1581]. Even otherwise, this does not appeal to reason that a Lumberdar whose duties have been defined in Rule 22 of the Rules ibid remain absent from the village for a considerable period of time and still retain the said post. The duties are carved in such a manner that his presence in the village everyday is a sine qua non for his retaining the said post, therefore, it is held that absence is one of the grounds for dismissal of a Lumberdar.
11. As regards maintainability of the writ petition in cases of appointment of Lumberdar, I have gone through the judgments cited by learned counsel for Respondent No.
1. Although the consensus of all, the judgments is on the fact that High Court shall not sit as a Court of appeal in cases where the revenue hierarchy has decided up to the Board of Revenue, however, I am guided by a latest judgment passed by the Hon'ble Supreme Court of Pakistan reported as. M.
Nazar Ahmad v. Muhammad Aslam and others [2013 SCM R 363], in which it has been held that although High Court shall not sit as a Court of appeal in cases of Lumberdar yet has not denied interference, of this Court in cases where the order is against law, perverse, arbitrary, capricious, illogical and against the record. For convenience, the operative part of the said judgment is reproduced below: "It may be pertinent to mention here that the learned High Court while considering the cases about the appointment of Lumberdars is not supposed to sit as a Court of appeal but only has to examine, if there is any jurisdictional 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 are perverse, arbitrary, capricious, illogical and against the record. But the order passed in review by the Board in this case does not fall within the above category and; thus, should have not been interfered by the learned High Court".
The judgment cited by learned counsel for the petitioner reported as Haji Muhammad Zaman Khan v. Member BOR Punjab, Lahore and others [2013 SCM R 1595] has also discussed the jurisdiction of this Court vis-a-vis appointment of Lumberdar and has also not abridged the interference of this Court in certain cases. They have set clown the parameters that in case the orders passed by the departmental functionaries were not in accordance with law or the case is of no evidence or the authority has acted in bad faith and is not following the prescribed procedure, then a writ can be maintained. For convenience, operative paragraph is reproduced below: "There is no cavil to the proposition that the learned High Court in its Constitutional jurisdiction can interfere with the order passed by a Tribunal of competent jurisdiction. However, the said exercise has to be confined to examine whether the order passed was in accordance with law; whether it was a case of no evidence; whether the authority acted in bad faith or there was failure to follow the procedure prescribed in law".
The Hon'ble Supreme Court of Pakistan in a case reported as Muhammad Saeed v. Ghulam Sarwar and another [2008 SCM R 1586] has held that any error on part of Board of Revenue in understanding law or application of the same in a wrong manner can be corrected by this Court in constitutional jurisdiction. In the same judgment ratio of Haji Noorwar Jan v. Senior Member Board of Revenue, N.W.F.P, Peshawar and 4 others [PLD 1991 S.C. 531], has been discussed which is reproduced hereunder: "The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it and laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law."
12. In view of the fact that both the Courts below have not considered the case put forth by the petitioner placing the evidence produced by him in juxtaposition with the one produced by Respondent No. 1, is an error on their part in applying the law and therefore, the findings rendered by them are not sustainable.
13. Another aspect, which has not been considered by the Courts below although was touched by the Member Board of Revenue, was the appointment of the petitioner as Lumberdar in place of Respondent No. 1 without any advertisement or publicity. I have gone through the order passed by the DOR/District Collector on 22.7.2006, through which petitioner has been appointed as Lumberdar of the village. It is strange to note that neither any application was requisitioned nor any publicity was made, because of which this could be ascertained that proper procedure was followed and after due consideration, appointment of the petitioner as Lumberdar was made. The procedure provided, for appointment of Lumberdar starts from invitation of application from the candidates who fulfill requirements of Rule 17 of the Rules ibid, thereafter the matter is scrutinized at the level of Tehsildar/Assistant Commissioner, whereafter the same is sent to DOR/District Collector who is the competent authority for appointment of a Lumberdar. The order, through which the petitioner has been appointed, is a clear index to the fact that the procedure for appointment of Lumberdar has deliberately been bypassed in order to accommodate the petitioner. Non-following of the procedure in appointment of petitioner as Lumberdar is a serious lacuna, which on the face of it lacks transparency and thus can very well be looked into by this Court in constitutional jurisdiction.
It shall not be out of place to mention here that the competent authority (DOR/District Collector) under Rule 21 of the rules ibid has the power to appoint an "Officiating Lumber by DOR/District Lumberdar clearly signifies that the petitioner has been appointed "Permanent Lumberdar", which was beyond the mandate of the Revenue functionary.
14. The Honourable Supreme Court of Pakistan while considering the mandate and working of the post of a Lumberdar in judgment reported as M. Nazir Ahmad v. Muhammad Aslam and others [2013 SCM R 363] has held 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 any 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 Lambaridari matter. It may be pertinent to mention here that the relevance and the importance of the date for applying to the post (Lambardari) is primarily meant to ascertain as to who are the persons interested in the job, so that they should come forward and apply for the same by a given date. Thus, the revenue authorities who has to make the appointment should have the fair idea of pool (of persons) from whom they should select the most suitable. Therefore, if an applicant who does not cross a threshold of qualification or if there is an impediment in his way for the appointment on the date of application, has applied in time, but while the matter is being processed and scrutinized and before the final decision is taken by the first revenue forum, such applicant either crosses the threshold or removes the hurdle in his way, such person notwithstanding the ineligibility on the date of, application should be considered by the revenue authorities for the assignment Because the object, as mentioned earlier, is to appoint a person to perform the duties of a Lambardar, who is the best and suitable man for the job----------------- ------------ ".
15. For what has been discussed above, this petition is accept, orders passed by District Officer (Revenue) Kasur dated.
22.7.2006 for appointment of petitioner as Lumberdar, Executive District Officer (Revenue), Kasur dated 18.03:2008 accepting the appeal of Respondent No. 1 and Member Board of Revenue dated 16.6.2009 dismissing the revision petition filed by the petitioner are set aside and the case is remanded to the Executive District Officer (Revenue), Kasur to decide the appeal of Respondent No. 1 afresh after considering all necessary material/evidence, provided by both the parties. As a sequel to setting aside of order dated 22.7.2006 passed by District Officer (Revenue) Kasur regarding the appointment of petitioner as Lumberdar, the revenue functionaries shall start the proceedings for appointment of a new Lumberdar in accordance with the procedure prescribed under the law.