I have heard the learned Advocates.
2. This is a revision petition against the order dated 31-12-1970 of the Commissioner, Rawalpindi Division, Rawalpindi, whereby he accepted the respondent's appeal and appointed him as a Lambardar of village Khodey, Tehsil Chakwal, District Jhelum.
3. The facts are that Hayat Muhammad, previous Lambardar of this village, died issueless on 4-10- 1969 and the post of Lambardar fell vacant. Applications were invited and four candidates including the present parties applied for the post. The Collector appointed the petitioner by his order dated 9-10-1970 on the ground that he was sister's son of the late Lambardar, had worked as Sarbrah Lambardar for 26 years, possessed 48K-7M of land, and was recommended by the Tehsildar. The respondent and one Mahboob Hussain separately appealed to the Commissioner, who found that it was not a case of appointment of a fresh Lambardar but was a case of succession of Lambardari, that the appointment would be determined by the principle of primogeniture under rule 19, and that according to the pedigree-table, the respondent was son of real brother of the deceased Lambardar's father. Accordingly, he accepted his appeal and appointed him as Lambardar by his order dated 31-12-1970. Hence this revision.
4. The learned counsel for the petitioner has argued that he is husband of the neice of the deceased Lambardar and is his sister's son and on account of this relationship, he has a better claim to the post of Lambardar. He has further argued that the petitioner has been working as a Sarbrah Lambardar for the last 26 years and has a better right. He has further urged that the respondent is too old and for that reason had not been recommended by the Tehsildar, that he is illiterate, that the signature on the notice on behalf of the respondent is not genuine but is forged, and that the petitioner is ready to swear an affidavit that the signature is forged. He has admitted that the respondent falls within the prescribed degree of collaterals but has pointed out that hereditary claim is not the sole consideration, that other factors as provided in rule 18 of West Pakistan Land Revenue Rules, 1968 (hereinafter referred to as the Rules), are to be considered, and that the Commissioner has not considered this aspect of the case. In this behalf he has relied upon the following authorities in support of his contention:--
(a) PLD 1959 Rev. 59.
(b) PLD 1959 Rev. 64.
(c) PLD 1959 Rev. 151.
5. The learned counsel for the petitioner has further stated that the Collector's decision should not have been set aside by the Commissioner unless he found it to be perverse or unreasonable.
Finally, he has argued that respondent was ineligible for appointment, being too old and physically unfit, in view of the provisions of rule 19(2)(c) read with rule 18(2)(c) of the Rules.
6. The learned counsel for the respondent has pointed out that in appointment of successor in estates, other than those owned chiefly or altogether by Government the mandatory requirement of rule 19(2) of the Rules is that the nearest eligible heir, according to the rule or primogeniture, shall be appointed. He denied that the respondent is illiterate or that there is any forgery in respect of his signature on the notice. He relied upon PLD 1950 (Rev.) 269 and urged that respondent's claim as the nearest eligible heir cannot be ignored. He also produced a report from the Tehsildar which shows that he has been performing the duties of a Lambardar quite satisfactorily after his appointment by the Commissioner.
7. I have given careful consideration to the arguments of the parties. The rulings quoted by the counsel for the petitioner are with regard to rule 15 of the old rules corresponding to the present rule 17 of the Rules. In the latter rule hereditary claim is one of the several mattors to be considered.
The present case, however, is not of first appointment of headman and this rule has no application to it. As rightly held by the Commissioner, this is a case of succession of Lambardari and, therefore, will be determined by the principle of primogeniture under rule 19 of the Rules.
8. The petitioner as husband of the niece of the deceased Lambardar and his sister's son has no claim under the law of primogeniture. It has not been claimed that there is any special custom of succession to the office nor could any claim of succession of headmanship through females be entertained by anyone knowing anything about Punjab village communities where, until the enforcement of Shariat Act females were generally not entitled, according to custom, even to a share of inheritance to property.
9. The claim that petitioner worked as Sarbrah Lambardar for the last 26 years has no relevance to appointment of successor Lambardar under rule 19 of the Rules. However, the fact that he did work for 26 years as such means that he derived this benefit from non-dis missal of the Lambardar in spite of the latter's inability to perform his duties without the assistance of a Sarbrah Lambardar.
Therefore, he cannot in fairness argue that dismissal must follow inability of a Lambardar to perform his duties himself. The practice in fact is that where a Lambardar is otherwise suitable he is allowed a Sarbrah Lambardar to assist him in the performance of his duties.
10.In the revision petition the petitioner had claimed that respondent is bed-ridden and presumably for that reason my predecessor had ordered at the time of admission of the petition that respondent must appear in person. He has appeared and seems to be physically quite fit, and also found by the Commissioner. He is not illiterate and on my direction he signed in my presence and his signature appeared to tally with that on the notice.
11.As regards Collector's decision having been set aside by the Commissioner. I hold that the latter was fully justified in doing so. The question of perversity or unreasonableness would arise only where an order was not illegal but was wilfully wrong or opposed to reason. Where, however, an order violates mandatory statutory provisions it must be knocked down if the Rule of Law is to prevail. In this case the order of Collector was clearly in violation of the Statutory provision of rule 19 of the Rules. He was bound to appoint the nearest eligible heir as it was a case of appointment of a successor. He could not have invited applications as he did and thrown open the appointment to anyone not in the line according to the rule of primogeniture, till he had considered the case of the nearest heir and if he was ineligible, the next heir, and so on. In case no eligible heir, who was a descendant, in the line, of the paternal great grandfather of the last incumbent, was available then alone the appointment could have been thrown open for being filled up under rule 17 of the Rules.
12.The respondent is the nearest heir of the last incumbent according to the rule of primogeniture, being the son of real brother of the deceased's Lambardar's father. He is a retired Subedar and there is nothing against him in the police record. He possesses sufficient property to meet the Zare-Bhart. He lives in the village. It would not be fair to ignore him on the ground of his old age as a Sarbrah Lambardar can be appointed in case at any time he needs such assistance.
13.Only if the respondent cannot discharge his duties without a Sarbrah Lambardar and no suitable man for the purpose is available would the question arise of changing him. It is significant that in rule 19(2) of the Rules, the word "shall" is used, making it mandatory that the nearest eligible heir is to be appointed while there is no such mandatory provision in rule 19(2)(c) of the Rules that the Collector shall refuse to appoint a person claiming as an heir, on any ground which would necessitate or justify the dismissal of that person from the office of the headman, the word, in contrast, used here being "may". Even when the question of any change arises, the petitioner or any other person would have no claim until no eligible heir under rule 19 of the Rules was available.
14. In view of the above discussion, there is no force in the revision petition which is hereby dismissed.