' NASIR ASLAM ZAHID, J.-This is a Constitutional petition filed by the tenant challenging the legality of the order, dated 20th October, 1981 passed by the Rent Controller under section 16 (1) of the 1979 Rent Restriction Ordinance fixing the rate of rent at Rs, 400 per month under section 16 (1) and directing the tenant to deposit the arrears of the rent at that rate and also directing deposit the future monthly rent at the same rate. Immediately after this order had been passed, the petitioner/tenant approached this Court through the present Constitutional petition which was filed on 5th November, 1981. We have heard Miss Surraiya Qamar, learned counsel for the petitioner, and Mr. Azhar Ali Siddiqui, learned counsel for the respondent No, 1/landlady. The other respondent is the Rent Controller.
2. In this case an ejectment application was filed on 9th March, 1981 wherein it was alleged that petitioner/tenant had not paid the rent of the premises in question since 1st November, 1980 and the rate of rent was stated to be Rs, 500 per month. Ejectment was prayed for on the ground of default. A written statement was filed in which not only the rate of rent was challenged but a plea was also taken that the rent had been paid upto the month of February, 1981 and as the rent of March, had not been accepted the rent had been tendered at the rate of Rs, 100 per month through money order which was not accepted. In the written statement it was pleaded that there were two shops in respect of which the ejectment application had been filed and the rent of each shop was Rs, 50 per month and as such a total monthly rent at the rate of Rs, 100 was payable in respect of the premises in question, and rent was regularly paid but no receipts were issued by the landlady.
No documents were filed alongwith the written statement. No agreement of tenancy was filed with the written statement nor any reference was made about the execution of any agreement of tenancy between the parties. It may also be observed that a suit No, 946 of 1981 had been filed by the petitioner against the landlady in the Court of Civil Judge, Karachi for declaration and permanent injunction in which suit also the petitioner had asserted that the rate of rent was Rs, 100 per month in respect of the premises in question. A declaration was sought in that suit that the petitioner was a tenant of the respondent/landlady in respect of the two shops in question and a permanent injunction was also sought for restraining the landlady from dispossessing the petitioner from the shops in question. Reliance was placed on several documents in that suit by the petitioner but no reference was made in the plaint about any agreement of tenancy nor any agreement of tenancy was filed alongwith the plaint. . ' In the ejectment case an application, dated 13th May, 1981 was filed under section 16 (1) of the 1979 Rent Restriction Ordinance by the landlady. Notice was ordered upon this application to be issued to the petitioner, who filed objections, dated 7th September, 1981. Alongwith the objections for the first time a copy of a tenancy agreement, dated 1st May, 1974 was filed which shows the rate of rent of the premises in question as Rs, 100 per month. Thereafter an application under section 151, C. P. C. Was filed by the landlady asking the Rent Controller to direct the petitioner to produce the original agreement and hold an enquiry and take action against the petitioner for producing a forged document in Court. Landlady's case was that the agreement was a forgery. No action was taken on that application under section 151, C. P. C. But after hearing the counsel on the application under section 16 (1), the impugned order, dated 20th October, 1981 was passed by the Rent Controller fixing the rate of rent at Rs, 400 per month and directing the petitioner to deposit the arrears of the rent and also to deposit future monthly rent at that rate. As noted earlier, after passing the impugned order, dated 20th October, 1981, the petitioner has approached this Court under the Constitutional jurisdiction to set aside the impugned order.
3. It is the contention of the learned counsel for the petitioner that he impugned order is an illegal order as before passing the said order the arterial on record had not been taken into consideration by the Rent ;ontroller specially the tenancy agreement. Learned counsel has relied upon le following authorities :-
(1) Khadim Hussan v. Mst. Geti Ara Begum 1984 CLC 68.
(2) M. A. Qadar Farooqi v. Master Plan Department PLD 1980 Kar.
486.
(3) Messrs Shahzad Ice Factory v. Special Judge Banking, Lahore PLD 1982 Lah.
92.
(4) $anaur Rahman v. Mansib Ali 1983 CLC 911.
' In the first decision reported in 1984 CLC 68 while deciding a first rent appeal under section 21 of 1979 Rent Ordinance, it was observed that while holding the summary enquiry under section 16 (1), the Rent Controller is required to take into consideration the objections, affidavits and other documents filed by the parties.
' PLD 1980 Karachi was a case dealing with the Sind Building Control Ordinance, 1979. It was observed in that judgment that where an authority passed an order which was in excess,of its jurisdiction, it is not incumbent upon the aggrieved party to avail of any alternate remedy provided by the concerned statute and the High Court will not normally refuse to exercise its discretion under its Constitutional jurisdiction in such cases.
' In PLD 1982 Lahore 92, a case relating to Banking Companies (Recovery of Loans) Ordinance it was observed by a learned Single Judge of the Lahore High Court that if an interlcutory order passed under a special law by a Court or Tribunal suffers from infirmities affecting jurisdiction of the Court or Tribunal, the High Court in exercise of its jurisdiction under Article 199 of the 1973 would be failing in its constitutional duties if it does not interfere and allows the Tribunal to pass illegal orders under cover of the special law.
' 1983 CLC 911 is another decision of the learned Single Judge of the Lahore High Court. In that case, the Rent Controller had recorded evidence of witnesses produced by the landlord without taking a decision on the tenant's application under Order 14, rule 5, C. P. C. Wherein it had been prayed that issue of nuisance which did not arise out of pleadings be struck off and action be taken against the landlord for playing fraud with the Court. Learned Single Judge of the Lahore High Court accepted the tenant's writ and directed the Rent Controller to frame fresh issues after taking a written statement from the tenant and then record evidence. It may be observed here that relief was granted in this case on the concession made by the Advocate for the landlord.
4. According to the learned counsel for the landlady if the agreement of tenancy produced by the petitioner with his objections had been genuine, the same would have been produced and relied upon, firstly in the suit filed by the petitioner and secondly in the written statement filed in the ejectment case, but neither in the suit nor in the written statement in the ejectment case, any such agreement was filed or relied upon. Mr. Azhar Ali Siddiqui, learned counsel for the respondent/landlady also relied upon case of Muhammad Abdullah v. Nawab Din (1) decided by the Supreme Court for the proposition that the tenant can always challenge the order for deposit of rent in an appeal passed against the final order of ejectment.
5. There is no cavil with the proposition that even in cases of interlocutory orders passed by tribunals under special laws, this Court is vested with power under its constitutional jurisdiction to interfere and set aside such orders if such orders have been passed in excess of their jurisdiction by the tribunals. But the present is a case where this Court should at this stage of the proceedings consider the legality or otherwise of the order, date 20th October, 1981 of the Rent Controller passed under section 16 (1) of the 1979 Sind Rented Premises Ordinance. In our view this is not the stage I interfere with the order of the Rent Controller passed under section 16 ( of the 1979 Ordinance. Let us see what has been done so far and who prejudice has been caused to the petitioner.
(1) 1971 $ C M R 336 In the present case the petitioner has approached this Court in this Constitutional Petition immediately on the passing of the order under section 16 (1). No application has yet been made under section 16 (2) b the landlady and no order has yet been passed striking off the defence of the tenant. If and when an application under section 16 (2) is filed, the petitioner will be at liberty to raise all such pleas that may be available to him in his objections and place such material as may be available. If the an order of ejectment is passed, the petitioner will be at liberty to file an appeal under section 21 (1) of the 1979 Rent Ordinance in which appeal he can also challenge the legality of the order, dated 20th October, 1981 of the Rent Controller passed under section 16 (1) and that his defence was no liable to be struck off on account of non-compliance of the order, dated 20th October, 1981.
6. This Constitutional Petition is premature. The order, dated 20th October, 1981 of the Rent Controller passed under section 16 (1) of the 1979 Sind Rented Premises Ordinance is an order which fixed the rent tentatively. It is not an order which determines the rate of rent finally. We do not wish to make any observation on the genuineness or otherwise of the tenancy agreement on which reliance has been placed by the petitioner/tenant as it might affect the case of one or the other party and evidence is yet to be recorded by the Rent Controller. As yet an order has been passed which materially affects the rights of the petitioner. His defence has not been foreclosed so far. And then, in case his defence is struck off on grant of an application filed under section 16 (2) by the landlady, a full and complete remedy will be available to the petitioner/tenant by way of an appeal under section 21 (1) of the 1979 Sind Rented Premises Ordinance, in which appeal, as observed earlier, a challenge to the legality of the order under section 16 (1) will be open to the petitioner.
7. Constitutional Petition No, D-1020/81 is accordingly dismissed but with no order as to costs.
1984 CLC [Lahore] Before Gul Zarin Kiani, J Ch. GHULAM ULLAH-Appellant versus BOARD OF REVENUE, WEST PAKISTAN, LAHORE AND 4 OTHERS -Respondents.
Writ Petition No, 672 of 1967, heard on 28th April, 1984.
(a) West Pakistan Land Revenue Rules, 1968- -- Rr. 17 (ii) (c) & 16 (ii) (c)-Appointment of headman-Heir entitled to succeed to office of Lambardar could be ignored by appointing authority on ground of his absence from estate and if in opinion of such authority his absence hindered performance of his duties as Lambardar. [p.
2976]A
(b) West Pakistan Land Revenue Rules, 1968- --R. 17 (ii) (c)-Appointment of Lambardar-Office of Lambardar is an administrative appointment - Continuous presence of Lambardar in estate to discharge numerous duties of his office was extremely essential-Appointment of Sarbrah Lambardar may not serve said purpose-Absence of person from estate and his permanent residence being not in same town, makes such person liable to be ignored from appointment as Lambardar. [p. 2976]B
(c) Constitution of Pakistan (1962)- -- Art. 98-Constitutional petition-Petitioner not taking specific ground in petition-Held, in absence of such ground in petition, petitioner could not be allowed to urge said point in constitutional proceedings particularly when 17 years had passed. [p. 2977]C
(d) West Rakistan Land Revenue Act (XVII of 1967)- -- S. 16-West Pakistan Land Revenue Rules, 1968, r. 17(iiXc)- Constitution of Pakistan (1962), Art. 98- Appointment of Lambardar from heirs of deceased Lambardar-Petitioner an heir of deceased Lambardar not resident of village-Exercise of suo motu revisional jurisdiction by Board of Revenue- Notice--Petitioner present before Board of Revenue when such order passed-Order of Board of Revenue showing that it was petitioner who suggested to Board that in case he was not to be considered to appointment for Lambardar his younger brother who was resident of village may be appointed as Lambardar -Younger brother of petitioner and son of deceased Lambardar appointed by Board of Revenue-Petitioner, held, could not contend, in circumstances, that Board of Revenue could not have set aside his appointment without a specific notice having been given to him in exercising suo motu revisional jurisdiction directly appointming a Lambardar from out of heirs of deceased Lambardar-Competent Authority could consider ground of absence of petitioner from estate against him while making appointment-Order of Board of Revenue, therefore, fell within jurisdiction of Board of Revenue. [p. 2977]D & E
(e) West Pakistan Land Revenue Rules, 1968- -- R. 17(ii)(c)-Appointment of Lambardar-Preference to eldest male heir in case of death of Lambardar-Board of Revenue not considering elder son of deceased Lambardar to be suitable candidate on account of his permanent absence from estate and appointing his younger brother (son of deceased Lambardar) as LambardarHeld, while ordering so Board of Revenue had neither exceeded jurisdiction nor violated Rules. [p. 2977JF (f ) West Pakistan Land Revenue Rules, 1968- -- R. 17(ii)(c)-Appointment of Lambardar-No one has vested right to be appointed as Lambardar - Competent Authority to select person best suited for purpose. [p. 2977]G Abdul Ghafoor v. The Member (Revenue) Board of Revenue and another 1982 SCM R 202 fol.
Ch. Aziz Ahmad for Petitioner. Nemo for Respondents.
Date of hearing : 28th April, 1984.
' Chaudhry Ghulam Sarwar was Lambardar of Chak No, 55/2D Tehsil Okara, District Sahiwal. With his death the post fell vacant. On the death of the said Lambardar, District Collector, Sahiwal acting under the rule of primogeniture vide his order, dated 8th April, 1963 appointed his eldest son Chaudhry Ghulam Ullah as Lambardar of the said Chak. The appointment was made under rule 17(11) of the Land Revenue Rules. Since Chaudhry Ghulam Ullah was residing in Lahore, the District Collector appointed Chaudhry Mansoor Ullah as Sarbarah Lambardar to perform the duties of the office. Chaudhry Ghulam Hussain respondent No, 2 and Col. Chaudhry Atta Ullah brother of the appointed Lambardar filed appeals against the appointment of Chaudhry Ghulam Ullah as Lambardar before the Commissioner Multan Division. Both the appeals were dismissed by Mr. Rifat Pasha, learned Commissioner, Multan vide order, dated 18th February, 1964. A revision was filed by Chaudhry Ghulam Hussain in the Board of Revenue. The learned Member, Board of Revenue, accepted the revision vide order, dated 29th December, 1966 (Annexure D'). It was observed by the learned member that Chaudhry Ghulam Ullah was residing in Lahore and his absence from the estate work against his appointment. Consequently his appointment was set aside and the case was remanded to the Collector of the District to appoint a suitable Lambardar from amongst the other heirs of the deceased Lambardar.
2. It is admitted by. Chaudhry Aziz Ahmad, learned counsel appearing for the petitioner that in pursuance to the remand order made by Member Board of Revenue, Col. Atta Ullah was appointed as Lambardar by the Collector, Col. Atta Ullah has also expired and now his eldest son has been appointed as Lambardar of the Estate in place of his deceased father.
3. I have heard the learned counsel for the petitioner and seen the record. Rule 17(ii) deals with appointment of successor Lambardar on the basis of rule of primogeniture. The rule for the facility of reference is quoted as under :- " 17 . (i) In an estate, or sub-division thereof, owned chiefly or altogether by Government, a successor to the office of headman shall be selected with due regard to all the considerations, other than hereditary claims, stated in rule 15 : Provided that in such an estate, or sub-division thereof notified for the purpose by the Financial Commissioner, the selection shall, as far as possible, be made in the manner prescribed by sub- rule (ii) if a suitable heir is forthcoming.
(ii) In other estates the nearest eligible heir according to the rule of primogeniture shall be appointed unless some special custom of succession to the office be distinctly proved, but subject in every case to the following provisions :-
(a) the claim of a collateral relation of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant in the male line of the paternal- greatgrandfather of the last incumbent.
(b) Where a headman has been dismissed in accordance with the provisions of rule 16 the Collector may refuse to appoint any of his heirs :-
(1) if the circumstances of the offence, dereliction of duty, or disqualification, for which the headman was dismissed make it probable that he would be unsuitable as a headman ;
(2) if there is reason to believe that he has connived at the offence of dereliction of duty for which the headman has been dismissed ; #TBS (3) #TBE if any disqualification for which the headman has been dismissed attaches to him ;
(4) if he may reasonably be supposed to be under the influence of the dismissed headman or his family to an undesirable extent.
Note.-If a dismissed headman's heir is considered fit to succeed, regard shall be had to the property which he will inherit, in like manner as if he had already inherited it.
(c) The Collector may also refuse to appoint person claiming as an heir on any ground which would necessitate or justify the dismissal of person from the office of the headman.
(d) A female is not ordinarily eligible for the office, but may be appointed when she is the sole owner of the estate for which the appointment has to be made, or, for special reasons, in other cases.
(iii) Failing the appointment of an heir, a successor to the office shall be appointed in the manner, and with regard to the considerations, described in rule 15.
(iv) Election shall not in any case be resorted to as an aid in making appointments under this rule and rule 14."
Rule 16 specifies the grounds for dismissal of a village headman. A headman appointed is liable to dismissal from the post of Lambardari if owing to his age, physical or mental incapacity or absence from the estate he is unable to discharge the duties of his office. Combined reading of rule 17(ii)(c) with rule 16(ii)(c) goes to show that an heir entitled to succeed to the office of Lambardari can be ignored by the appointing authority on the ground of his absence from the estate, if in the opinion of the authority his absence from the estate hinder the performance of his duties as Lambardar.
The Member, Board of Revenue, therefore, in exercise of revisional jurisdiction, ignored the claim of Chaudhry Ghulam Ullah the eldest son on the ground of his permanent absence from the estate. It has not been disputed that even now Chaudhry Ghulam Ullah is residing in Lahore. The office of Lambardar is an administrative appointment. Continuous presen of the Lambardar in the estate to discharge numerous duties of his office I extremely essential. The appointment of a Sarbarah may not serve the Same purpose. In view of absence of Chaudhry Ghulam Ullah, from the estate and his residence in Lahore the Member, Board of Revenue therefore I exercise of his revisional jurisdiction rightly ignored the claim of Chaudhr Ghulam Ullah.
4. It has been contended by the learned counsel for the petitioner that the Member, Board of Revenue, while dismissing the appeal of Chaudhry Ghulam Hussain could not have set aside the appointment of Chaudhry Ghulam Ullah in revisional jurisdiction. It was further contended by the learned counsel that if the learned Member chose to exercise his suo motu revisional jurisdiction then notice under section 16 of the Punjab Land Revenue Act, 1887 was necessary. Since no notice had been given to Chaudhry Ghulam Ullah to support his appointment the revisional order is defective. This contention is devoid of any merit. Firstly the petitioner has not taken a specific ground on this score In the writ petition and in the absence of such a ground the petitioner cannot be allowed to urge this point after a lapse of about 17 years. Secondly the petitioner was present before the Member, Board of Revenue and was fully heard. Thirdly as is evident from the order, dated 29th December, 1966 passed in revision by learned Member that it was suggested by the petitioner that in case he is not considered eligible his younger brother Col. Atta Ullah who is the resident of the village may be appointed as Lambardar. Therefore it does not lie in the mouth of the petitioner now to contend that the learned Membe could not have set aside his appointment without a specific notice having been given to him in exercising suo motu revisional jurisdiction, directing the appointment of a Lambardar from out of the heirs of the deceased.
5. As observed above, the post of Lambardar is a administrative appointment. By virtue of his office the Lambardar has to perform various duties and has to serve as a link between villagers and the local administration. The nature of duties demand his continued presence in the village. The competent authority, therefore, could have considered the ground of absence from estate against the petitioner while making the appointment. The order, therefore, fell within the jurisdiction of the learned Member, Board of Revenue. While remanding the case for fresh appointment in accordance with the rule of primogeniture, the learned Member, Board of Revenue has not violated the provisions of Land Revenue Rules. The office of Lambardari even after remand has remained in the family of the deceased Lambardar. Instead of Chaudhry Ghulam Ullah his younger brother Col. Atta Ullah who was a resident of the village had been appointed. With his death the Lambardari has passed on to his son.
6. Learned counsel has lastly contended that in numerous judgments the Board of Revenue, has appointed the eldest male heir despite his absence from the estate and the appointed Lambardar has been allowed the facility of a Sarbarah. He has supplied a list of cases in which such a course has been adopted. However, the learned Member, Board of Revenue, whose jurisdiction was not denied by the learned counsel for the petitioner, on a consideration of the instant case found that the petitioner was not a suitable' candidate on account of his permanent absence from the estate despite his being the eldest son of the deceased Lambardar. While ordering so the learned Member, Board of Revenue, has neither exceeded his jurisdiction nor violated the rules relating to the appointment of Lambardar. Besides it would not be appropriate at this stage to disturb the appointment mad to the office of a Lambardar in pursuance of the order of remand by the Member, Board of Revenue. No stay order was issued by this Court when the writ petition was admitted for full hearing on 11th December, 1967.
7. The Supreme Court of Pakistan in the case of Abdul Ghafoor v. The Member (Revenue), Board of Revenue and another (1) observed : ' "No one has a vested right to be appointed as Lambardar and the relevant authorities select the persons best suited for the purpose withG a view to facilitate the performance of administrative functions of
(1) 1982 SCMR, 202 ' Lambardari. In the present case all the competent authorities on the revenue side i,e, Collector, Commissioner and the Member, Board of Revenue after considering merits of both the sides have ultimately selected Nawab .Khan respondent for the office in question. The learned Judges of the High Court were, therefore, justified in observing that even if the final order of the Member, Board of Revenue is assumed to be erroneous it could not be interfered with in exercise of writ jurisdiction by the High Court."
8. No case, therefore, is made out for the exercise of Constitutional jurisdiction of this Court. The petition, therefore, fails and is dismissed leaving the parties to bear their own costs.