NAYYAR MAHMOOD, MEMBER (JUDICIAL-VII).--Through this single order both afore-mentioned appeal and revision are being decided simultaneously because arguments, impugned orders, facts, purpose and law points involved.are identical. Mian Nazir Ahmad Wattoo, appellant has filed R.O.A. # 63/2014 under section 161 of the Land Revenue Act, 1967 while Mian Maqsood Ahmad has filed R.O.R. # 1060/2014 under section 164 of the Land Revenue Act, 1967. Both appellant and petitioner have challenged single order dated 09.06.2014, whereby the learned Additional Commissioner (Revenue), Sahiwal Division, Sahiwal partially accepted appeal of Mian Nazir Ahmad Wattoo against the order of the then District Officer (Revenue)/District Collector, Pakpattan.
2. Briefly stated, the facts involved are that for creation of additional post of Lambardar in Chak No,161/EB, Tehsil Arifwala, District Pakpattan, 100 plus residents Deh moved an application on 27.09.2006 on the pretext that population of Chak was 15,000 and its area was more than 90- squares, for which only one Lambardar was unable to manage all affairs including attestation of mutations etc. and that considerable amount of Government dues was pending against him. Field staff supported the contentions of the residents Deh. Agreeing with the reports of the field staff, the District Officer (Revenue)/District Collector, Pakpattan recommended for creation of additional Patti of Lambardar on 12.10.2006. The then Executive District Officer (Revenue) vide order dated 08.11.2006 created one additional post of Lambardar for Chak No,161/EB, Tehsil Arifwala, District Pakpattan. Later on, District Officer (Revenue)/District Collector, Pakpattan vide order dated 28.12.2006 appointed Maqsood Ahmad Wattoo, petitioner in R.O.R. No,1060 of 2014 and respondent in R.O.A. No,63 of 2014, being the only contestant in whose support nine other candidates withdrew their candidature. Mian Nazir Ahmad Wattoo, challenged order regarding creation of additional post of Lambardar in the Board of Revenue, Punjab. The then learned Member (Judicial-II), Board of Revenue, Punjab (Mr. Muzaffar Mehmood) vide order dated 02.06.2009 accepted R.O.A. No,09/2007, set aside the impugned order of the Executive District Officer (Revenue), Pakpattan dated 08.11.2006 regarding creation of additional post of Lambardar on the ground that sitting Lambardar/appellant's right was prejudiced with the said order. He remanded the matter to the Executive District Officer (Revenue), Pakpattan for decision afresh after giving opportunity of hearing to Lambardar/appellant. Mian Maqsood Ahmad, petitioner in R.O.R. No,1060/2014 and respondent in R.O.A. No,63/2014 assailed the said order before the Hon'ble Lahore High Court, Lahore through Writ Petition No,13027/2009, which was dismissed-as-withdrawn on 28.09.2012.
3. On remand, the case remained pending in the Court of the Executive District Officer (Revenue), Pakpattan, which was later on entrusted to the Additional Commissioner (Revenue), Sahiwal Division with the change of system. Respective counsel of the parties were heard by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal and vide impugned order accepted the appeal partially, set aside the order of District Officer (Revenue)/District Collector, Pakpattan dated 28.12.2006 regarding appointment of Mian Maqsood Ahmad as Lambardar on the gro'ind that it was necessary to call and hear sitting Lambardar (Mian Nazir Ahmad) with further direction to the District Collector, Pakpattan to start the process afresh to fill the post of Lambardar of Chak No,161/EB, Tehsil Arifwala, District Pakpattan. Furthermore, Maqsood Ahmad was allowed to continue as Lambardar till appointment of new Lambardar subject to the condition that he does not interfere in new process. Hence the cases in hand.
4.Mian Muhammad Siddique Kamiana, advocate/counsel for Mian Nazir Ahmad Wattoo, appellant in R.O.A. No,63/2014 and respondent in R.O.R. No,1060/2014 argued that the matter in issue pertains to creation of additional post of Lambardar in Chak No,161/EB, where appellant is permanent Lambardar since his forefathers. The said post was created on the basis of ex parte reports of the field staff. It was managed by the respondent. Mian Maqsood Ahmad, which is apparent from the fact that he maneuvered his appointment as Lambardar within 40 days on 28.12.2006 from the court of District Officer (Revenue)/District Collector, Pakpattan. After withdrawal of Writ Petition Hon'ble Lahore High Court, Lahore, respondent sought review of order dated 02.6.2009 passed by the then Member (Judicial-II), Board of Revenue, Punjab, which was turned down vide order dated 20.02.2013.
5.In post remand proceedings, the learned Additional Commissioner (Revenue), Sahiwal Division, Sahiwal without any enquiry and report passed the impugned order dated 09.06.2014 vide which not only illegal order of creation of additional post of Lambardar was restored but also removed the appellant from the post with direction to make appointment process afresh. It has been shown that more than 100 residents applied for creation of additional post of Lambardar, which is against record because respondent and his brother, who is an Advocate by profession, managed all this.
Application was submitted before the District Officer (Revenue)/District Collector, Pakpattan on 01.08.2006. On the same day whole process of reports was done. Furthermore, Tehsildar directed Revenue Officer Halqa to record statements of the residents Deh but Girdawar Halqa did the job, who was not competent to do so. Creation of additional post of Lambardar is purely an administrative matter and residents Deh have nothing to do with it. The lower court has referred 12.07.1967 decision of the Board of Revenue Punjab on the subject but without taking notice of the same passed the impugned order. The said order was passed when father of the appellant was Lambardar Deh and request of residents was turned down for creation of additional post of Lambardar on the plea that it was an administrative matter. Lower court has also failed to consider Rule 16 of the Land Revenue Rules, 1968, which was referred to by the appellant during arguments before the lower court. The Lambardari is in the family of the appellant for the last 100 years and that too without any complaint/default. Respondent has managed all this in collusion with revenue field staff due to his enmity with the appellant. The impugned order is not speaking one and is result of misreading/non-reading of record and is based on surmises and conjectures, which is not sustainable in law. He prayed that the appeal (R.O.A. No,63/2014) may be accepted and order for creation of additional post of Lambardar dated 08.11.2006 may be set aside.
6. On the other hand, Ch. Muhammad Naseer, Advocate/counsel for Mian Maqsood Ahmad, respondent in R.O.A. No,63/2014 and petitioner in R.O.R. No,1060/2014 argued that out of the ten candidates, eight withdrew their candidature in his favour while the 9th contestant was his brother, Mian Fakhar Hayat Wattoo, who also surrendered his right in favour of the respondent. The matter of creation of additional post of Lambardar was remanded by the Member (Judicial-II), Board of Revenue, Punjab on 02.06.2009. It was an ex parte order. Review petition was accepted by the successor learned Member (Judicial-II) on 20.02.2013 and matter was remanded with direction to decide the matter regarding creation of additional post of Lambardar afresh. Mian Nnazir Ahmad Wattoo moved an application before the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal, who accepted the application/appeal partially on 09.06.2014 by maintaining the order regarding creation of additional post of Lambardar and set aside order of appointment of Mian Maqsood Ahmad Wattoo. The learned lower court has transgressed its jurisdiction while passing the impugned order. The matter in issue before the lower court was <u>"creation of additional post of Lambardar in Chak No,161/EB, Tehsil Arifwala. District Pakpattan".</u> The order of appointment of Mian Maqsood Ahmad as Lambardar was neither under consideration nor challenged by anyone before the lower court. It was ignored that he was appointed as Lambardar against newly created post on the recommendations of the field functionaries and adopting legal procedure. It was also ignored that he was choice of District Collector and without application of judicious mind, the learned Additional Commissioner (Revenue), Sahiwal Division, Sahiwal has passed the impugned order by setting aside order of his appointment as Lambardar. Learned counsel also produced on record photo copies of some documents stating that on the basis of an FIR No,103/2016 under sections 379/411, P.P.C. at P.S. Saddar Arifwala for cutting/selling of trees from the State land against a sum of Rs,45,000/-. He further stated he has become old and unable to perform his functions/duties as Lambardar and some other person has been appointed to act as Sarbrah Lambardar on his behalf. On the recommendations of Assistant District Public Prosecutor, Arifwala, the matter is under process with the District Collector, Pakpattan for cancellation of Lambardari allotment in his favour. He prayed that the revision petition may be accepted and impugned order may be set aside in the interest of justice and fair play.
7. Arguments advanced by the learned counsel for the respective parties considered and documents placed on record minutely perused. It appears that additional post of Lambardar was created without valid administrative justification. A simple statement that it was in the interest of public service would not serve the purpose. In this regard paragraph 617 of the Colony Manual is relevant, which requires that the post of Lambardar should be kept minimum, where Lambardari Grants are attached with the post. This paragraph read with Board of Revenue, Punjab notification dated 17.01.2006 make all Lambardars entitled for Lambardari Grants. Furthermore, on creation of additional post of Lambardar with cogent reasons, the same should have been filled strictly A in accordance with Rule 17 of the Land Revenue Rules, 1968, which in this case was also missing. If it was essential to create an additional post of Lambardar in the Chak, it was mandatory to hear the view point of sitting Lambardar, which was also ignored. The appointment of Mian Maqsood Ahmad against the newly created post of Lambardar was made on the first date of hearing by the District Officer (Revenue)/District Collector, Pakpattan on the basis of ex parte reports of the field formations. The learned Member (Judicial-II), Board of Revenue, Punjab while remanding the matter had specifically directed for decision afresh after hearing the sitting Lambardar, whose view point was entertained by the court while passing post remand order on the basis of five observations made by it in para.7 of the impugned order, which are very interesting and read as under:--- (i)The post of additional Lambardar was created on 08.11.2006 but his exclusive name (Maqsood Ahmad) is shown to be recommended by the applicants 40-days before in the application which was submitted to revenue authorities on 27.09.2006; (ii)All the candidates for Lambardari submitted their applications on 08.12.2006 and all except two brothers withdrawn their applications on 15.12.2006. The contents and handwritings in many of the applications are matching. It seems that one master mind was supervising the whole process; </i> (iii)Tehsildar Arifwala has written in his recommendations that all the candidates appeared before him on 05.12.2006 whereas applications were submitted on 08.12.2006 (three days later); (iv)It is very rare that two real brothers contest election with each other. In the instant case, no differences between two brothers (Magsood Ahmad and Fakhar Hayat) have been reported rather both complemented each other. In the so-called process of selection of Lambardar, only these two brothers emerged as contesting candidates. One of them surrendered in favour of other. This seems to be just to regularize the process; (v)D.0. (R) received recommendations on 26.12.2006, he ordered to fix in peshi. It was fixed for 28.12.2006 and on the same date, Magsood Ahmad, respondent was appointed as Lambardar of Chak No,161/EB, Arifwala. It was necessary to call and hear 'Lambardar-1 (Nazir Ahmad) but the same was ignored.
8. Above observations of the learned Additional Commissioner (Revenue), Sahiwal Division, Sahiwal have not been rebutted by either party. It is evident from record that creation of' additional post of Lambardar was not justified and the same was created to accommodate Mian Maqsood Ahmad who was appointed as Lambardar in violation of Rule 17 of the Land Revenue Rules, 1968 in a slipshod manner. Creation of Lambardari post without valid administrative justification on application of interested party rendered the whole process as doubtful and without legal force. No post of additional Lambardar should be processed on applications of interested parties or residents Deh. It is rather an administrative arrangement which should be initiated by the District administration strictly on need basis. As such, creation of post of Lambardar and subsequent appointment were illegal and are set aside accordingly. With these observations, both appeal and revision petition are disposed of.
9.A copy of this order be sent to the District Collector, Pakpattan for information.
10.The judgment in these cases was reserved on 12.04.2016 and it is being announced today in chamber, which may be communicated to the respective parties through their counsel.