' IBN E ALI , J . --Said Qamar, respondent No,2 herein, was Lambardar of Village Jalsai, Tehsil Swabi ( now district) . He declined to collect Government dues for the period Rabi 1978 to Kharif 1979. The Dalbaches were, therefore, lying undelivered with the Pa twari who served a notice upon respondent No,2, Said Qamar. But he recorded on the notice a note that he was not fond of doing the job of Lambardari which may be entrusted to some other body. The Patwari made a report to that effect and consequently the Collector by order dated 29-4-1981 removed respondent No,2 from the post of Lambardari and in his place Afridi Khan respondent No,1 herein, was appointed as Lambardar on the recommendation of the sul3ordinate revenue officials. Respondent No,2 filed appeal before the Additional Commissioner who, by order dated 18-4-1981 remanded the case to the Collector with the direction to decide it on merit after giving chance of hearing to respondent No,2.
2. On remand, the Collector, by order dated 17-6-1981, maintained his previous order, namely, removal of respondent No,2 from the job of Lambardari and in his place appointment of respondent No,1.
3. This order was challenged in appeal by respondent No,2 before the Additional Commissioner.
The petitioners herein, close relatives of respondent No,2, also filed application before him and for the purpose of this writ petition it is sufficient to state that the grievance of the petitioners was that if respondent No,2 was disqualified for the job of Lambadari, they being his relatives, one of them should have been and may be appointed as Lambardar according to the rules. The learned Additional Commissioner after hearing the parties dismissed the appeal of respondent No,2 on merit and as regards the application of the petitioners herein the same was dismissed on the ground that it was not entertainable, vide order dated 1-3-1982. Aggrieved by this order, respondent No,2 and the petitioners filed separate revision petitions before the Member, Board of Revenue but by order dated 19-6-1982, he dismissed both the revision petitions.
4. By going through the impugned orders, it is clear that in this case the authorities in the Revenue Department have not followed the procedure laid down in the rules relating to the appointment of Lambardar, thereore, their impugned orders cannot be sustained in law.
5. Sub-rule (ii) of Rule 17 framed under section 36 of the West Pakistan Land Revenue Act, 1967 is relevant and may be reproduced:- Matters to be considered in appointment of successor.-- (i)
(ii) In other estates, the neares' eligible heir, according to the rules 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 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-great grandfather 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 or dereliction of duty for which the headman has been dismissed.
(3) if any disqualification for which the headman has been dismissed, attaches to him;
(4) if he may reasonable be supposed to be under the influence of the dismissed headman or his family to an undesirable extent. Explanation.--If a dismissed headman's heir is considered fit to succeed, regard shall be had to the property which he would inherit.
(c) The Collector may also 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.
(d) A female is not ordinarily eligible for appointment to the office of a headman, 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."
6. In view of the provisions of Rule 17(ii) and (iii) as quoted above, it is incumbent upon the authorities to look for appointment as Lambardar of the nearst eligible heir of the predecessor Lambardar, the more so as it emphasises that such eligible heir, according to rules of primogeniture, shall be appointed. On the removal of respondent No,2 from the job of Lambardari, the authorities have not taken any such step and have suo motu appointed respondent No,1 as Lambardar. In PLD 1950 Rev . (Punjab) 4, it was laid down: -- "Land Revenue Rule 17--Appointment of Lambardar--Rule of Primogeniture should be strictly adhered to."
7. In the light of the cited provisions they were bound to consider, if any heir of respondent No,2 is eligible for appointment as Lambardar in his place. As they have failed to advert to this legal aspect o the case, the impugned orders passed by them are clearly unlawful.
8. As a result, this writ petition is accepted and the case is remanded to the Collector with direction to decide it according to law after giving opportunity of hearing to the petitioners. Meanwhile, however, Afridi Khan, respondent No,1 will continue to act as Lambardar. No order as to costs.