' This petition under Article 9 of the Provisional Constitution Order, 1981 is directed against the order dated 22-5-1984 passed by Mr. Maqbul Ahmad Sheikh, Member (Revenue), Board of Revenue, Punjab, Lahore.
2. 'The facts briefly stated are that the post of a Lambardar of Chak No, 281/E. B., Tehsil Burewala, District Vehari became vacant on account of the death of Mumtaz Ahmad Awan on 22-6-1979. A number of persons applied for the post of Lambardar, including the petitioner and respondents Nos. 2 and 3. The District Collector, Vehari, by his order dated 27-7-1981 found Ghulam Abbas petitioner as the most suitable choice for the post of Lambardar from amongst the contesting candidates and appointed him as permanent Lambardar of Chak No, 281/E. B. Burewala.
3. Against the above-mentioned order of the District Collector five appeals were preferred. These appeals were heard by the Commissioner, Multan Division, Multan who by his order dated 28-2- 1982 concurred with the findings of the District Collector, Vehari and upheld his order dated 27-7- 1981 whereby the petitioner was appointed permanent Lambardar.
4. Respondents Nos. 2 and 3 felt aggrieved and filed two separate revisions in the Board of Revenue, Punjab. One of these revisions viz. The revision filed by Allah Ditta, respondent No, 2, came up for hearing before Mr. S. M. Nasim, Member (Revenue), Board of Revenue, Punjab, Lahore who by his order dated 13-6-1982 dismissed the same in lirnine holding that there was no reason to differ with the concurrent findings of the Courts below.
5. The revision of Muhammad Fazil, respondent No, 3 however, came up for hearing on 22-5-1984 and was laid before Mr. Maqbul Ahmad Sheikh, Member (Revenue), Board of Revenue, Punjab, Lahore alongwith a Review Petition filed by Allah Ditta, respondent No, 2 against the order of Mr. S. M. Nasim Member (Revenue), Board of Revenue, Punjab dated 13-6-1982.
6. The learned Member (Revenue), Board of Revenue, Punjab, (Mr. Maqbul Ahmad Sheikh) did not agree with the orders passed by the District Collector, Vehari and the Commissioner, Multan Division, Multan. He, therefore, by his order dated 22-5-1984 set aside the orders of the aforementioned two functionaries and remanded the case to the District Collector, Vehari for fresh decision directing that the District Collector would take into consideration the tribal composition of the village and also the present representation amongst the three posts of Labradors, As regards the order of Mr. S. M. Nasim, Member (Revenue), Board of Revenue, Punjab dated 13-6-1982 no direction whatsoever was given and it was not recalled even by a remote inference.
7. The petitioner is aggrieved by the order dated 22-5-1984 passed by the Member (Revenue), Board of Revenue, Punjab (Mr. Maqbul Ahmad Sheikh) and has come up to this Court in the present constitutional petition.
8. The learned counsel for the petitioner raised the following contentions :
(i) That the learned Member (Revenue), Board of Revenue, Punjab, in his impugned order dated 22- 5-1984, has not made even a remote reference to the order of Mr. S. M. Nasim Member (Revenue), Board of Revenue, Punjab dated 13-6-1982 and the effect of that order has not at all been taken into consideration while passing the impugned order ;
(ii) that the review could not have been entertained as the conditions precedent, therefore, as provided by section 8 of the W. P. Board of Revenue Act, 1957 had not been fulfilled by respondent No, 2 ;
(iii) that the learned Member (Revenue), Board of Revenue, Punjab (Mr. Maqbool Ahmad Sheikh) in his impugned order dated 22-5-1984 has not adverted to the very important aspects which were taken into consideration by the learned District Collector, Vehari and the learned Commissioner, Multan Division, Multan while holding the petitioner as the most suitable choice for the post in dispute.
' The learned counsel submitted that the learned District Collector had categorically held that the petitioner is better qualified, owns land, bears good moral character and belongs to the majority community which findings have in no manner been reversed while passing the impugned order ;
(iv) that the principle of tribal representation cannot also be spelt out from Rule 17 of the W. P. Land Revenue Rules and that the rule has been misinterpreted ;
(v) that the all important factor that both respondents Nos. 2 and 3 are non-residents in the village as is apparent from the report of the Patwari and orders of the learned District Collector and the learned Commissioner has not been considered by the learned Member (Revenue), Board of Revenue, Punjab while remitting the case.
' It is urged that if these factors as had prevailed with the learned District Collector and the learned Commissioner been taken due notice of by the learned Membe,:. (Revenue), Board of Revenue, Punjab and he had not ignored to look into these matters the order of remand could not have been passed by him and
(vi) that Mr. S. M. Nasim being still a Member of the Board of Revenue, Punjab, propriety and the well-established principle of dispensation of justice viz. The avoiding of conflict of judgments warranted that the revision petition of respondent No, 3 and also the review petition filed by respondent No, 2 should have been heard by him.
9. On the other hand, the learned counsel for the respondents submitted that the impugned order dated 22-5-1984 is not a final order and being a remand order only could not be called in question in the constitutional jurisdiction of this Court. Reliance was placed in support of this contention on Ramzan v. Rehabilitation Commissioner (Legal), Sargodha and another (1).
' The next contention of the learned counsel for the respondents was that the review petition had been entertained by the Board of Revenue, Punjab and it would be wholly immaterial whether it had been heard by one
(1) PLD 1963 (W, P.) Lab. 461 Member or the other. Elaborating his contention the learned counsel submitted that the portfolio of Revenue when the order dated 13-6-1982 was passed by the Board of Revenue, Punjab was held by Mr. S. M. Nasim, whereas this portfolio has now been entrusted to Mr. Maqbul Ahmad Sheikh and as such the latter was competent to hear the review petition.
' Lastly, the learned counsel for the respondents contended that Rule 17 (e) of the W. P. Land Revenue Rules clearly envisages that a proportionate representation is contemplated by this sub- rule and must have been taken notice of by the District Collector and the Commissioner while making the appointment of a Lambardar.
10. In reply, the learned counsel for the petitioner submitted that the impugned order dated 22-5- 1984 is a final order for all intents and purposes as it has sealed the fate of the petitioner.
Continuing his arguments the learned counsel for the petitioner submitted that the categorical manner in which Rule 17 of the Land Revenue Rules has been interpreted by the learned Member (Revenue), Board of Revenue, Punjab so as to import the principle of tribal representation and the direction contained in the last three lines of the impugned order leave no shadow of doubt that the District Collector has been given a binding direction to appoint a person from the Rajputs as Lambardar.
11. Having given consideration to the controversy involved I find that there is force in the contentions of the learned counsel for the petitioner in so far as these relate to the entertainment of review petition of respondent No,
2. It has been correctly pointed out that the learned Member (Revenue), Board of Revenue, Punjab while passing the impugned order did not at all advert to the order of his colleague Mr. S. M. Nasim which was sought to be reviewed except to the extent that in the narration of facts , this order has been referred to. No discussion whatsoever is available qua the order of Mr. S. M. Nasim learned Member (Revenue), Board of Revenue, Punjab in the whole of the impugned order. There is not even a formal sentence in the impugned order whereby the order of Mr. S. M. Nasim has been set aside or recalled. That being so, the order of Mr. S. M. Nasim obviously holds the field.
12. I have gone through the certified copy of the review petition of Allah Ditta, respondent No, 2 which has been annexed with this petition and find that there is no ground whatsoever available which could in any manner be held to fulfil the conditions contained in section 8 of the Punjab (formerly West Pakistan) Board of Revenue Act, 1957 for entertainment of a review petition. The matters agitated therein are all such which had been taken up in the revision petition and no material whatsoever was referred to which could be termed as one which was not within the knowledge of the review-petitioner or which could be in his knowledge after exercise of due diligence. There can be no two opinions about a well-' established principle that power of review unless it be all encompassing B sould not be exercised so as to undertake re-examination of matters of fact' or re-exposition of law.
13. In the light of the above discussion there is no alternative except to hold that the impugned order of the learned Member (Revenue), Board of Revenue, Punjab dated 22-5-1984 to the extent it purports to give relief in the review petition cannot be sustained and accordingly to that extent it is quashed.
14. Whilst on this aspect of the matter I feel inclined to observe that the Board of Revenue should evolve a procedure which it can do in the light of the provisions contained in section 6 of the W. P.
Board of Revenue Act, 1957 that review of an order of a sitting Member of the Board whether holding that portfolio or not should be heard by the same Member as the rule of propriety and maintenance of confidence of the litigant public in an institution which is at the apex of the hierarchy of Revenue in the Province so warrants.
15.It also appears appropriate that the Board of Revenue, Punjab should ensure that petitions against one and the same order of a forum belowk are heard together and as far as practicable by the same learned Member so that conflicting decisions in regard to the same controversy could be avoided.
16.In the case in hand, I find that the revision petition of Muhammad Fazil, respondent No, 3 was instituted on 26-5-1982, whilst Allah Ditta, respondent No, 2 filed his revision petition on 1-6-1982.
Needless to mention that both the revision petitions were directed against the same order of the Commissioner Multan Division, Multan dated 28-2-1982. Now the revision petition of Allah Ditta, respondent No, 2 though filed later was beard on 13-6-1982 by Mr. S. M. Nasim Member (Revenue), Board of Revenue and dismissed in limine, whilst the earlier filed revision petition of Muhammad Fazil, respondent No, 3 was not heard there and fell for decision before another learned Member (Revenue), Board of Revenue (Mr. Maqbul Ahmad Sheikh) as late as 22-5-1984 and was accepted.
This has created an anomalous situation that while the same decision of the Commissioner has been upheld by the Board of Revenue in one proceeding yet it has been set aside by the Board in another proceeding. The anomaly becomes E all the more conspicuous when, as already observed by me, the learned Member (Revenue), Board of Revenue, Punjab who has decided the controversy subsequently has not even formally recalled the earlier order of the Board of Revenue.
17. Adverting now to the impugned order, in so far as it has dealt with the revision petition of Muhammad Fazil respondent No, 3, 1 may observe that it is again a well-established principle that when a matter is remanded to a subordinate Court/forum its hands should not be tied down and it should be allowed to decide the matter afresh in accordance with law. The learned Member (Revenue), Board of Revenue, Punjab while giving the direction as contained in the last para. Of the impugned order, has made an observation which could be taken as a direction binding on the District Collector and he may influenced b3, the interpretation of Rule 17 as made in the impugned order ignore the other relevant factors which he should consider while deciding the controversy involved. In the above view of the matter while upholding the order of the learned Member (Revenue), Board of Revenue, Punjab dated 22-5-1984 passed on the revision of Muhammad Fazil, respondent No, 3 as regards remand of the case, which I would not like to interfere with being not a final order, I direct that the learned District Collector, Vehari shall decide the controversy of the appointment of Lamdardar of Chak No, 281/E.B., Burewala in accordance with law, and while so doing take into consideration all the requirements of Rule 17 of the W. P. Land Revenue Rules which have to be read conjunctively to arrive at a decision regarding suitability/appointment of a Lambardar. The learned District Collector, Vehari shall, therefore, adjudicate upon the matter afresh in accordance with law and after affording an opportunity of hearing to the parties concerned.
' In the attendant circumstances of the case there will be no order as to costs.