1. MUHAMMAD AFZAL ZULLAH, CJ. ---This appeal through leave of the Court has arisen out of a Lumbardari matter relating to an estate in the Province of Punjab.
2. The subject-matter regarding appointment of the Lumbardar is still pending at lower field/stage, therefore, neither it is necessary. To make a detailed statement of facts nor would it be` advisable to decide the legal controversies involved in it, as they are yet to be commented and adjudicated upon by the authorities concerned. .
3. As stated by the learned counsel for the appellant, late Mufti Zia-ulHussain was appointed as a Lumberdar against a newly-created additional post. The appellant's father late Ghulam Haider filed an appeal against this appointment with the plea that he himself was a better candidate.
4. During the pendency of the appeal proceedings a collateral controversy arose as to whether the new post could or could not be created. The matter came up to the Supreme Court and the creation of the post was not disturbed. In the meanwhile, considerable time had passed and both the appointed Lumbardars, as well as the objector, Ghulam Haider, the appellant's father, died.
5. Syed Ahmad Nacem, respondent No.l, who is stated to be brother of Mufti Zia-ul-Hussain, according to his learned counsel, is now candidate for appointment as Lumberdar in place of the deceased Lumberdar. Muhammad Aslam appellant, who is the son of late Ghulam Haider, is also a candidate for appointment as Lumberdar. His case is that his father was a better candidate than Mufti Zia-ul-Hussain. And if he would have been appointed in place of the deceased Lumberdar, on former's death, the appellant would hove claimed and is now claiming to be appointed as Lumberdar.
6. These questions were agitated before the Revenue authorities, and ultimately the Board of Revenue by an order impugned before the High Court remanded the case to the Commissioner for a fresh decision on merits. The respondents side challenged this remand order before the High Court in its Constitutional writ jurisdiction, which having been allowed, leave to appeal was granted in order to examine the argument "that in the matter of appointment of a Lumberdar the order of the Member, Board of Revenue remanding the case was not liable to be interfered with in exercise of Constitutional jurisdiction by the learned High Court."
7. Learned counsel for the appellant reiterated the argument noted in the leave grant order and cited several judgments in support thereof, including Muhammad Warrayam v. Member, Board of Revenue, Punjab, Lahore and 3 others (1972 SCM R 354), Muhammad Ramzan v. Member (Revenue), Board of Revenue and others (1989 SCM R 614), Sardar Muhammad v. Muhammad Hafiz and others 1989 SCMR 1941(1) and Shaukat Ali and another v. Muhammad Shafi and 2 others 1991 SCM R 1504.
8. He also tried to analyse Rules 17 and 19 ralating to the appointment of Lumberdars. Learned counsel for the respondents, on the other hand, relying on Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P., Peshawar and 4 others (PLD 1991 SC 531) contended that ordinarily the High Court would not interfere in the appointment of Lumberdars, but there is no bar in correcting any legal error which has already been committed and then leaving the appointment to the exclusive domain of the Revenue authorities.
9. Learned counsel for the appellant rightly pointed out in this behalf that the High Court instead of waiting for the decision by the Revenue authorities on various legal points involved in this case including whether Rule 17 or Rule 19, would be attracted, took up on itself the function of the Revenue authorities to adjudicate upon the appointment of the so-called "successor" Lamberdar.
10. According to him it was yet to be decided whether the original appointment of Mufti Zia-ul-Hussain on the newly-added post was not proper nor with lawful authority. After the said decision, several other legal and factual aspects would have been examined by the authorities concerned, so as to appoint a successor Lumberdar. This would also be a moot point whether or not Rule 17 or Rule 19 is attracted.
11. With respect, we are of the view, that the High Court itself fell into error in interfering with the remand order. It was during the remand proceedings that the questions of fact and law involved in this case would have been decided by the designated authorities. It is only thereafter, namely, after ultimate decision of the Board of Revenue (after/subsequent to remand proceedings) that the High Court might/could have examined the matter in its writ jurisdiction. And interference would have been possible only if the requirements indicated in the case of Muhammad Younus already noticed, would have been satisfied.
12. In the light of the foregoing discussion, this appeal is allowed, the impugned judgment is set aside and the writ issued by the High Court is recalled. There shall be no order as to costs. .