AKHTAR SAID MEMBER.- The legal point involved in this case is, whether the law recognizes the concepts of " temporary Lambardar " and permanent lambardar.
2. The terms "permanent lambardar" and "temporary lambardar" have nowhere been used in the Land Revenue Act or the Rules, except in rule 21, which envisages a special contingency, and which has nothing to do with the normal circumstances provided for under rule 17 and rule 19. The latter two rules deal with matters to be considered in first appointments, and matters to be considered in appointments, of successors, respectively.
3. As regards rule 17, it makes no distinction whatsoever in estates owned chiefly or altogather by Government, and other estates, it is thus clear that, in first appointments, no distinction is made by the law between these two types of estates. The conclusion from this is inescapable, that for first appointments a lambardar is required to have the same qualifications for all types of estates.
There is no distinction between colony and non-colony villages.
4. Once a lambardar has been appointed on the basis of qualifications laid down under rule 17, the law naturally has to provide for, and does provide for, the appointment of his successors, when he dies or is removed. These contingencies are anticipated under rule 19.
5. Now, rule 19 envisages two different conditions: (a) whether the outgoing lambardar is lambardar of an estate owned chiefly or altogether by Government or (b) whether the out-going lambardar is lambardar of an estate not owned cheifly or altogether by Government. Rule 19(1) provides for a mode of succession in an estate which is chiefly or altogether owned by Government, and this mode, which is mandatory, is that in such estates succession shall be made with due regard to all the considerations staled in rule 17, except the hereditary claim of the candidates. The most important legal point to bear in mind here is that the law only talks about successions in two different types of estates, and not about any disability attaching to existing lambardars in either type of estate; in other words, it does not say that lambardars appointed under rule 17 in estate owned chiefly or altogether by Government are somehow to be considered as "temporary"' and those in other estates as "permanent". All lambardars in all types of estates are on an equal footing, or equally permanent. Variation in criteria of selection of successors, and that too to the extent of only one consideration, namely, the hereditary consideration, is contemplated by the law in reference to the ownerships in the estates; the law is conscious of a possible change in the ownerships of an estate with the passage of time, and, in its wisdom, would not have the hereditary claim considered for succession, until the estate ceases to be chiefly or altogether owned by Government. In other words, when an estate comes to be chiefly or altogether owned by private individuals, the law makes the hereditary claim mandatory according to the rule of primogeniture. It is worth noticing that this distinction between rule 19(1) and 19(2) is prospective, and not retrospective, in that in neither case (i.e. Whether the estate is owned chiefly by Government or not) is the incumbent lambardar rendered "temporary".
6. Again, the law does not contemplate a fresh appointment when a lambardar has first been appointed in an estate owned chiefly by Government and that estate later comes to be owned chiefly or altogether by private individuals. This means that even when an estate, with passage of time, passes into the hands of private owners, the old lambardar may continue indefinitely (obviously, because he was a permanent lambardar). What we have to look at when a succession opens in the nature of ownerships in the estate (which can vary), and not the nature of the lambardari (which does not change).
7. The letter of the law in this case is unambiguous. The law does not use the terms "temporary" and "permanent" in rules 17 and 19. Nor does the law relating to dismissal (rule 18) make any such distinction, it has been an historical and historic, misconception to read permanence and impermanence into the law relating to lambardars. For succession, when it opens, we immediately have to look at the ownerships of the estate and decide whether rule 19(1) or 19(2) shall apply. The courts are not permitted to interpret objective conditions in colony chaks in their historical perspective, and read them into the law, in order that some lambardars shall be rendered "permanent" and others Temporary". What the legislature has thought fit to ignore, shall not be supplied by the courts, unless there is a clear lacuna in the law, or an absurdity or contradiction would result - which is not the case here.
8. As regards the facts of the case, Sanaullah, who was the father and grandfather of the petitioners Muhammad Nawaz and Naseer Ahmad respectively, was appointed on probation on the death of his father Amin Muhammad in 1908. He was confirmed in 1910. At the time of his appointment the village was owned chiefly by Government, but well before the death of Sanaullah in 1987 (when the succession opened) the village had ceased to be owned chiefly by Government.
The Deputy Commissioner/Collector and the Commissioner in their decisions dated 26-3-1990 and 9-6-1990 respectively have erred in considering Sanaullah a "temporary lambardar" and not a permanent lambardar. After this legally wrong assumption, they naturally applied rule 17 to the succession, considering it a case of first appointment. This error on the part of the Deputy Commissioner and Commissioner has unfortunately been perpetrated and perpetuated since long. The legal discussion above should remove it definitively.
9. Therefore, as the succession in the present case is to be governed by rule 19(2) and the rules of primogeniture have to be applied, obviously Naseer Ahmad; who is the eldest son of the eldest son Muhammad Sharif (deceased) of the outgoing lambardar Sanaullah, is to succeed his grandfather Sanaullah. This is a case of succession and not of first appointment, as the Deputy Commissioner and the Commissioner wrongly thought. And as it is conceded by private individuals, this succession has to be governed by rule 19(2), that is to say, by primogeniture; and under primogeniture Naseer Ahmad must succeed his grandfather Sanaullah (deceased).
10. I would, therefore, accept the revision petition of Naseer Ahmad and appoint him lambardar in place of Sanaullah, by setting aside the impugned orders.
11. I would reject the petition of Muhammad Nawaz.
12. The other two revision petitions namely R.O.R. No. 1127 of 1990: MUHAMMAD NAWAZ VRS.
MUHAMMAD AKHLAQ ETC, and R.O.R No. 1462 of 1991; MUHAMMAD AKHLAQ VRS. MUHAMMAD NAWAZ are disposed of in light of the above orders.