' This judgment will dispose of Constitution petitions bearing Nos.2229/90 and 765/91, as both of them arise out of single order of the Member, Board of Revenue dated 24-7-1990 and involve the examination of common questions law and facts.
2. A few essential facts leading to these Constitution petitions are; that a permanent post of Lambardar of Chak No,281/EB, Tehsil Burewala, District Vehari fell vacant on account of the death of Mumtaz Ahmad Khan Awan on 22-6-1979. Number of perons including Muhammad Maroof and Muhammad Ashraf (herein petitioners), Muhammad Fazil and Ghulam Abbas (herein respondents) applied to the District Collector for this post. The District Collector, Vehari by order dated 27-7-1981, appointed Ghulam Abbas as a permanent Lambardar. Against this order five appeals were preferred which were decided by the Commissioner, Multan Division who rejected these appeals by order dated 23-2-1982.
3. Feeling aggrieved, Allah Ditta and Muhammad Fazil filed two separate revision petitions in the Board of Revenue Punjab, Lahore. The revision by Allah Ditta was heard by Mr. S.M. Naseem, Member, Board of Revenue who dismissed the same in limine, by means of order dated 13-6-1982.
The revision filed by Muhammad Fazil and review petition by Allah Ditta were decided by Mr. Maqbool Ahmad Sheikh, Member, Board of Revenue Punjab, Lahore who accepted these petitions, set aside the order of Mr. A.M. Naseem M.B.R. Dated 13-6-1982 and the order of the District Collector, Vehari dated 27-7-1981 and remanded the case back to the District Collector for decision afresh on merits. This happened vide order dated 22-5-1984.
4. Feeling dissatisfied, Ghulam Abbas filed Constitution petition bearing No,761/84 which was accepted by his Lordship Mr. Justice M. Mahbood Ahmad vide order dated 12-2-1985. It was held that the order of Member, Board of Revenue dated 22-5-1984 to the extent of observation was illegal and so was quashed. The impugned order to the extent of remand was maintained. It was further observed that the learned District Collector, Vehari shall decide the controversy in accordance with the requirement of Rule 17 of the West Pakistan Land Revenue Rules, 1968.
5. Pursuant to this order, the District Collector by means of order dated 16-6-1986 appointed Muhammad Ashraf as Lambardar holding him to be the most suitable person. Against this order three appeals were filed before the Commissioner namely by Ghulam Abbas, Muhammad Maroof and Muhammad Fazil respectively. The Commissioner, Multan Division by a single order dated 27- 7-1987 accepted the appeal of Muhammad Maroof and appointed him as Lambardar instead of Muhammad Ashraf. The appeals of Ghulam Abbas and Muhammad Fazil were rejected. This order even did Not satisfy the contestants who filed three separate revision petitions bearing No,2393/87, 2507/87 and 3643/87 in the Board of Revenue.
6. The learned Member, Board of Revenue accepted the revision petition by Ghulam Abbas, appointed him as a permanent Lambardar while the revision petitions of Muhammad Ashraf and Muhammad Fazil were rejected. Feeling dissatisfied with this order Muhammad Maroof and Muhammad Ashraf have challenged this order by Constitution petitions Noted above.
7. The argumens on behalf of the petitioner were led by Mr. Muhammad Akram Sheikh, Advocate, and were adopted by Mr. Kanwar Intizar Muhammad Khan, Advocate. The submissions made by learned counsel for petitioner be summarized as follows:-
(1) The learned Member, Board of Revenue had contravened the order of the learned Judge in Chamber by holding that under the impact of order of High Court the only two persons were left in the field i,e. Muhammad Fazil and Ghulam. Abbas and the Collector should only have summoned these two persons and No other persons; that the orders of summoning other contestants were illegal and resulted into illegal decision by the Collector as well as the Commissioner. It was argued that this finding by the Member, Board of Revenue was totally incorrect and illegal.
(2) The learned Judge in Chamber upheld the order of remand passed by Mr. Maqbool Ahmad Sheikh, Member, Board of Revenue. The aforesaid order of remand was unconditional order and as such the District Collector as well as the Commissioner were clearly right in summoning all the contestants.
8. The arguments advanced on behalf of the learned counsel for respondent be summarized as below in following words:-
(i) It was argued that neither Muhammad Ashraf Nor Muhammad Maroof has filed revision petitions against the order of the Commissioner, Multan Division dated 28-2-1982 before the Member, Board of Revenue. As such they would be deemed to have accepted the appointment of Ghulam Abbas as Lambardar. On the strength of this fact, it was held that the petitioners have No right to file these Constitution petitions.
' It was next contented that against the order of remand passed by Mr. MA. Sheikh, Member, Board of Revenue, neither Muhammad Maroof Nor Muhammad Ashraf filed Constitution petitions.
According to the learned counsel it was a settled principle of law that if the order of remand was Not challenged, that party was precluded to challenge the aforesaid order in Constitutional jurisdiction. Reliance was placed on Muhammad Rafiq v. Addl. Settlement Commissioner, Multan and others (PLD 1966 (W.P.) Lahore 590), M. Muzaffar-udDin Industries Ltd. v. Chief Settlement and 'Rehabilitation Commissioner, Lahore and others (PLD 1967 Lah. 452) and Inayatullah v.
Muhammad Aslam Khan and 2 others (1975 SCMR 314).
(iii) It was urged that the appointment of Lambardar was purely administrative function of the revenue hierarchy who had unfettered discretion to make these appointments. According to the learned counsel the Board of Revenue was at the apex of this hierarchy and this Court had No jurisdiction to set aside the order passed by the Member, Board of Revenue in exercise of his discretionary power. Strength was sought from Abdul Wahid v. Member, Board of Revenue Punjab, Lahore and aNother (1971 SCMR 719), Muhammad Shall v. Member (Revenue), Board of Revenue Punjab, Lahore and 2 others 1972 SCMR 253), Muhammad Warrayam v. Member, Board of Revenue, Punjab, Lahore and 3 others (1972 SCMR 354), Ghulam Hussain v. Ghulam Muhammad and aNother (1976 SCMR 75), and Sharaf Din v. Qazi Abdul Jalil and aNother (1986 SCMR 1368).
9. I have heard the learned counsel for the parties at a considerable length and have perused the impugned order.
10. The questions emerging for decision are as follows:-
(1) Whether the impugned order is in contravention of the order passed by my learned brother M.
Mahboob Ahmad, J. Dated 12-2-1985.
(2) Whether the petitioner on account of Not filing any Constitution petition against the order of the Member, Board of Revenue (Mr. M.A. Sheikh) is debarred from challenging the same in Constitutional jurisdiction of this Court.
(3) Whether the impugned order has been passed in the discretionary authority and such is Not amenable to interference in the Constitutional jurisdiction of this Court.
11. Having set down the material facts of the case and the contentions of the parties and questions for decision, at this stage, I feel it appropriate to Notice the relevant operative parts of the order of Member, Board of Revenue, (Mr. M.A. Sheikh) dated 22-5-1984 and operative parts of the judgment of His Lordship Mr. Justice M. Mahboob Ahmad in order to have better understanding of the case of both the sides.
12. The relevant portion of the order of Member, Board of Revenue dated 22-5-1984 is as follows:- "It is common ground between the parties that since the last incumbent was Not survived by a male issue in the line, the case is required to be determined under Rule 17 of the West Pakistan Land Revenue Rules. There arc three posts of Lambardar, in the village of which the present post fell vacant on the death of Mumtaz Ahmad Khan Awan by caste. The tribal composition of the village suggests that at least one post of Lambardar should go to the second largest tribe of Rajput. The premises of the learned District Collector that since Awans are in majority therefore, the vacant post should also go to Awan is well conceived and militates against the principle of tribal representation as enunciated by Rule 17 of the West Pakistan Land Revenue Rules. The very basis of the decision of the Collector which was upheld by the learned Commissioner is Not sound. I am, therefore, constrained to set aside the orders of the lower Courts and remand the case to the District Collector for fresh decision. The District Collector would take into consideration the tribal composition of the village and also the present representation amongst the three posts of Lambardar."
13. The learned Judge in Chamber dealt with the validity of the said order to the extent of review petition of Allah Ditta in para. No,13 of judgment. This para is as follows:- "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. The learned Judge dealt with the merits of the case in para. No,17 and recorded the observation in following terms:- "Adverting Now to the impugned order, in so far as it has dealt with the revision petition of Muhammad Fazil respondent No,3, I may observe that it is again a well-established principle that when a matter is remanded to a subodinate 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 be influenced by 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 Lambardar of Chak No,281-EB, Burewala in accordance with law, and while so doing take into consideration all the requirements of Rule 17 of the W.P. Land Revenue which have to be read conjunctively to arrive at adecision 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."
15. Now the stage is set to decide the questions Noted above. I will take up the question No,1. It is a well-settled principle of law that when a superior authority passes an order of remand uncircumscribed by any condition, the whole lis goes back to subordinate authorities for decision afresh in accordance with law. Unless and until the order of the remand prescribes limitation, the Court/authority to whom this is remanded is required to adjudicate the entire controversy between the parties afresh after hearing them. This question came up for consideration in Hartich Chandra Das v. Satya Nidhi Ghosal and others (AIR 1916 Cal. 77). In this case it was held:- "In strict law a remand made by an Appellate Court without retaining the appeal in its own file necessarily re-opens the whole case, and the Court of Appeal to which the case was remanded is bound to hear the appeal upon the judgment of the Court of first instance and on Nothing else. It is true that this Court in the exercise of its powers of supervision under the Charter has assumed, and we think rightly assumed, in certain cases authority to limit the scope of certain appeals remanded to the lower Courts without keeping them in its own file. But whenever this is done, it is in our opinion absolutely essential that this Court should lay down clearly without any possibility of mistake that it did intend to limit the scope of the appeal to certain specified questions. We are, therefore, of opinion that the learned Subordinate Judge who has Now re-heard the case was right in holding that the whole appeal was open to him for decision. The importance of this lies in the fact that the first appellate Court found that the Kabuliyat which is Now found to be the real origin of the present tenancy was a forgery."
' This principle was reiterated in Kaluram and aNother v. Mehtab Bai and aNother (AIR 1959 Madhya Pradesh 181).
16. Applying this principle to the facts and circumstances of this case, it is crystal clear from the order of the learned Judge in Chamber dated 12-2-1985; that the order of Mr. Maqbool Ahmad Sheikh, Member, Board of Revenue to the extent of remand was upheld. In my considered opinion the order of this Court was therefore, of affirmance of unconditional order of remand passed by the learned Member, Board of Revenue (MA. Sheikh). Only observations contained therein were expugned. The learned Judge had also quashed the order to the extent of Allah Ditta (passed in review application). The net result is that the order of remand passed by the Member, Board of Revenue dated 24-7-1990 was wholly unconditional and so it re-opened the whole case before the District Collector. In this background the learned District Collector as well as the Commissioner were well within their rights to summon all the contestants. Resultantly I am of the view that the Member, Board of Revenue had clearly misapprehended the scope and purport of the order of this Court dated 12-2-1985 and so had made an apparent error of law on the face of record. This error has vitiated the impugned order.
17. Having dealt with the first question I Now turn to second one. The contentions of the learned counsel for respondent that the petitioners have Not filed Constitutions petition against the order of the Member, Board of Revenue, and as such are Not entitled to file these Constitution petitions. I do Not see any merit in it. The authorities cited by the learned counsel for respondent proceed on distinguishable facts and have No application whatsoever to the facts of this case. These decisions arise out of the order of remand passed under Order 41, Rules 23 and 25 of the C.P.C. The order of remand under Order 41, Rules 23 and 25 ibid is appealable under Order 43, Rule 1, sub-clause (u) of C.P.C. Subsection (2) of section 105 of C.P.C. Postulates that a party aggrieved by an appealable order of remand must file appeal against it within prescribed period of limitation; failing which it will be precluded from assailing it subsequently and the order will become res judicata. The controversy in this litigation arises out of the orders passed by the Revenue Authorities under the provisions of West Pakistan Land Revenue Act, 1967. This is self-contained Act. It provides the remedies of appeal revision and review. Chapter 13 of this Act deals with the rights of appeal, review and revision. Section 161 deals with the right of appeal against the order of the Collector while section 164 prescribes remedy of revision. Section 163 ibid deals with the power of review.
From the scheme of this Act it clearly follows that prohibition contained under subsection (2) of section 105 of C.P.C. Is Not applicable to proceedings under the Land Revenue Act. Had the legislature intended to make the order of remand final it would have provided analogous provision in Land Revenue Act also. I have, therefore, No difficulty in coming to the conclusion that the contention of the learned counsel for respondent is devoid of merits and deserves to be rejected.
18. The only question remaining to be decided is whether the impugned order passed by the Member, Board of Revenue is amenable to Constitutional jurisdiction of this Court. This question has been settled by the Supreme Court in Haji Noorwar Jan v. Senior Member, Board of Revenue, N.- W.F.P. Peshawar and 4 others (PLD 1991 SC 531). In this case leave was granted to consider the number of decisions rendered by the Supreme Court in which it was held that the appointment of Lambardar is a purely administrative function and No person has a vested right to be appointed as a Lambardar, that the selection canNot be made by the Court in exercise of their Constitutional jurisdiction Nor can the discharge of such administrative duties hampered or impeded as held in Abdul Wahid v. Member, Board of Revenue, Punjab, Lahore and aNother (1971 SCMR 719), Muhammad Shafi v. Member.
(Revenue), Board of Revenue, Punjab, Lahore and 2 others (1972 SCMR 253), Muhammad Warrayam v. Member, Board of Revenue, Punjab, Lahore and 3 others (1972 SCMR 354), Ghulam Hussain v.
Ghulam Muhammad and aNother (1976 SCMR 75), Sharaf Din v. Qazi Abdul Jalil and aNother (1986 SCMR 1368). The Supreme Court dismissed Civil Appeal No,10 of 1986 and partly allowed two appeals (Civil Appeals No,458/1987 and 28/1988) by holding that after the error of law in the judgment of Member, Board of Revenue has been corrected, it will be for the Board of Revenue to decide afresh the revisions brought before it in accordance with law and so remanded these two appeals to the Board of Revenue for decision afresh.
19. His Lordship Mr. Justice Shafi-ur-Rehman while delivering opinion observed as under:- "'Even in discretionary and administrative fields the law and its purposes had to be kept in view. The administrative discretion and the power does Not extend to empower the authorities to rewrite the law of their own choice, to understand the way they like and to lay down the law for subordinates and those in the lower hierarchy in an arbitrary manner and on an erroneous understanding of the law. For this reference has been made to Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447) and Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), where the amplitude of discretionary and administrative powers had been put under a restraint by and large indicated by the requirement of the rule of law.
' In examining the questions in issue in these appeals, one has to necessarily identify the error of law apparent on the face of the record, if any, and thereafter to determine its nature and effect."
20. Guided by the principles laid down in Haji Noorwar Jan's case (PLD 1991 SC 531), I have No difficulty in reaching the conclusion that the impugned order passed by the Member, Board of Revenue has been passed without authority on account of being in violation of the order of this Court dated 12-2-1985.
21. I accept these petitions, set aside the impugned orders and remand the case back to the Member, Board of Revenue who shall decide the revision petitions filed by both petitioners afresh in accordance with law. There shall be No order as to costs.