This Constitutional petition under Article 199 of the Constitution of ISILMIC Republic of Pakistan, 1973, has been directed against the order dated 20-6-1993 of Member (Judicial-11), Board of Revenue, Punjab, Lahore, respondent No.l, whereby he upheld the order dated 14-12-1992 passed by the Commissioner, Multan Division, respondent No.2, dismissing the appeal of the present petitioner against the appointment of Muhammad Hanif, as Lambardar by A.C./Collector, Khanewal vide order dated 13-4-1986.
2. Briefly stated facts of the case are that on the death of Abdul Karim permanent Lambardar of Chak No.150/10-R Tehsil and District Khanewal on 1-6-1985, applications for appointment of successor Lambardar were invited. Except Muhammad Ibrahim the elder brother of petitioner, the present petitioner and Muhammad Hanif, respondent No.4, the remaining applicants left the contest at the early stage. The concerned Tehsildar initially recommended the name of Muhammad Ibrahim, the elder brother of the present petitioner and the elder son of deceased Lambardar but he being a Government servant was not found suitable for the post. The Assistant Commissioner/Collector Khanewal after hearing the contesting parties appointed Muhammad Hanif respondent No.4 as Lambardar vide order dated 13-4-1986. Aggrieved by the order passed by Collector, Khanewal, Muhammad Ibrahim filed an appeal before the Commissioner Multan Division which was dismissed as withdrawn vide order dated 23-2-1988. Pending disposal the appeal of Muhammad Ibrahim the present petitioner filed a time-barred appeal against the order dated 13- 4-1986 of Collector, Khanewal. The Commissioner, Multan Division after hearing the petitioner and respondent No.4, set aside the order dated 13-4-1986 passed by the Collector, Khanewal and remanded the case for fresh decision vide order dated 30-8-1988. Muhammad Hanif, respondent No.4, challenged this remand order passed by the Commissioner, Multan Division before Board of Revenue, Punjab and the order impugned was set aside and the case was remanded back to Commissioner, Multan Division for fresh decision vide order dated 9-7-1989. After remand, the Commissioner, Multan Division dismissed the appeal of the petitioner vide order dated 14-12-1992 with the observation that earlier the petitioner withdrew his candidature in favour of Muhammad Ibrahim, his elder brother during the proceedings before the Collector, Khanewal. The petitioner challenged the dismissal of his appeal before the Board of Revenue through a revision petition under section 164 of the West Pakistan Land Revenue Act, 1967 but on failure he filed the present petition before this Court.
3. Initially the petitioner and his elder brother Muhammad Ibrahim sought appointment of the Lambardar on the basis of Rule of primogeniture by virtue of Rule 19(2) of the West Pakistan Land Revenue Rules, 1968. The petitioner surrendered his candidature and withdrew the contest in favour of his elder brother Muhammad Ibrahim as according to him, he being eldest son of the deceased Lambardar was to be appointed as successor Lambardar. The Collector, Khanewal not finding Muhammad Ibrahim the eldest son of Abdul Karim deceased Lambardar a suitable person, appointed Muhammad Hanif as Lambardar by virtue of Rule 17 of the West Pakistan Land Revenue Rules, 1968. The contest of the present petitioner and his brother Muhammad Ibrahim in appeal was that appointment of Lambardar was to be made under Rule 19(2) and not Rule 17 of the ibid Rules. This controversy went twice to the Board of Revenue and finally was decided in favour of Muhammad Hanif respondent.
The pivotal question involved in the case is as to whether the appointment of the successor of the deceased Lambardar was to be made on the basis of Rule of Primogeniture as provided under Rule - 19(2) or it was a case to be governed by Rule 17 of the West Pakistan Land Revenue Rules, 1968.
There is no cavil to the proposition that rule of primogeniture is not based on the principle of right of inheritance. The succession in the A appointment of Lambardar cannot be claimed as is inherited in the property. The word primogeniture as defined in Encyclopaedia Britannica in its 11th Edition is as under: "A term is used to signify the preference in inheritance which is given by law, custom, usage to the eldest son and his son."
The definition of primogeniture given in pronuncial Biographical Dictionary is as under:- "The state of being the first born of the children of the same parents, seniority by birth in a family having the same father and mother."
According to 49 Corpus Juris, the word `primogeniture' is defined as under:- "The state of being the first born among several children of the same parents; seniority by birth in the same family. The superior or exclusive right possessed by the eldest son, and particularly, his right to succeed to the estate of his birth, to the exclusion of younger sons."
According to the different definitions reproduced above, the word `primogeniture' means the eldest son of the same father and mother and his son and so on until the line is extinct.
Coming to the facts of the present case and keeping in view the definition of the word `primogenture', Muhammad Ibrahim, the eldest son could have been appointed on the basis of rule of primogeniture by virtue `of rule 19(2) of West Pakistan Land Revenue Rules, 1968 but he having been found not suitable person, the present petitioner who was second son of the deceased Lambardar was not entitled to be appointed as Lambardar on the basis of this rule. However, the son of Muhammad Ibrahim, if any, whether minor or major for the purpose of rule 19(2) of the ibid rules could have claimed appointment of Lambardar and so on. Consequently, the view taken by the revenue authorities at the apex of Board of. Revenue was unexceptionable. This point precisely was earlier dealt with by the Board of Revenue, Punjab in a case titled Abdul Rehman v. Nisar Ahmad (PLD 1975 Rev. 5) wherein the view taken was that, the eldest son and not the next living son of the deceased Lambardar was the nearest eligible heir to be appointed successor Lambardar.
There being no exception to the principle discussed above, the petitioner, being second son of the deceased Lambardar was not entitled to be appointed successor of the deceased Lambardar on the basis of rule of primogeniture. However, his case for the purpose of appointment of Lambardar under rule 17 of the rules in question could not be thrown away without considering his suitability or otherwise vis-a-vis respondent No.4.
5. Learned counsel for the petitioner vehemently contended that if the petitioner was not found entitled to be appointed as Lambardar on the basis of rule of primogeniture, he had a right to be considered for the purpose of Rule 17 of the said Rules but the Board of Revenue without going into the question of his eligibility as a candidate to the post of Lambardar dismissed the revision petition. According to the learned counsel the finding of the Commissioner that the petitioner being an absentee could be ignored to be appointed as Lambardar, on the basis of report of the field staff was not correct. He has further contended that dismissal of his appeal by the Commissioner without providing him a proper opportunity to prove that the report was fake was illegal. According to him the proper course for the appellate authority was to send the case back to the Collector for fresh decision after providing opportunity to the petitioner to prove his suitability.
6. Learned counsel appearing on behalf of respondent No.4 has submitted that the findings of the appellate and the revisional authorities regarding the non-suitability of the petitioner to be appointed as. Lambardar under Rule 17 of the West Pakistan Land Revenue Rules, 1968 are not questionable before this Court in writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He, with reference to Allah Ditta v. Mian Nisar Ahmad and another (PLD 1973 Lah. 359) submitted that no claim to the office of Lambardar can be laid, as of right, and therefore, the writ petition is not maintainable. He, placing reliance on Abdul Wahid v. The Member Board of Revenue, Punjab, Lahore and another (1971 SCM R 719) submitted that discretion exercised by the Revenue Authorities on the basis of proved facts is not liable to be interfered with by the High Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
7. The main question for decision is as to whether after coming to the conclusion by the authorities that the successor Lambardar was to be necessarily appointed under Rule 17 of the ibid Rules, the suitability of the petitioner was not required to be judged on the basis of the criteria laid therein.
Admittedly, the case of the petitioner for the purpose of Rule 17 was not before the Collector, Khanewal at the time of passing the order dated 13-4-1986 which order was set aside by the Commissioner on the ground that the case was to be dealt with on the basis of rule of primogeniture. However, after excluding the application of Rule 19(2) of the ibid rules, the petitioner was entitled to be considered for the appointment of Lambardar under Rule 17 of the Rules in question. The question whether the petitioner was in fact an absentee, was subject to scrutiny and dismissal bf appeal on the basis of ex parte report of doubtful character, without providing an adequate opportunity to the petitioner to rebut the same was not legal. The dismissal of the appeal of the petitioner by the Commissioner as time-barred was also not proper. The controversy involved in the appeal was in relation to the appointment of Lambardar visa-vis the right of petitioner as son of deceased Lambardar and his case as a candidate for the post for the purpose of Rule 17 of the West Pakistan Land Revenue Rules, 1968 being not subject-matter of the appeal, the Appellate Authority was not legally justified to dismiss his appeal on the question of limitation and suitability.
7-A. There is no cavil to the proposition that the appointment to the post of lambardar under Rule 17 of the ibid Rules cannot be claimed as of right to be enforced through a Constitutional petition before this Court but to consider the case of a candidate for the appointment of Lambardar can be subject --matter of the writ jurisdiction of this Court. It was observed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No.28 of 1988 involving the question of appointment of Lambardar as under:- "The Board of Revenue at the apex of the revenue hierarchy is charged with statutory duty of interpreting the law of applying it to individual cases coming up before it and laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the Constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law."
7-B. The Appellate authority in the present case in a perfunctory manner on the basis of an earlier report of subordinate revenue staff dismissed the appeal of the petitioner.
8. The point raised before the Board of Revenue that the case of the petitioner was not properly considered and examined vis-a-vis his right to be appointed as Lambardar for the purpose of Rule 17 after rejection of his case on the basis of succession, remained undecided. I, therefore, feel that the case of the petitioner for the purpose of Rule 17 of the West Pakistan Land Revenue Rules, 1968 needs re-examination to be decided afresh by the Board of Revenue. accordingly, set aside the order of the Board of Revenue to the extent of the dismissal of the revision of the petitioner vis-a- vis his suitability to be appointed as Lambardar under Rule 17 of the West Pakistan Land Revenue Rules, 1968 and remand the case back to Board of Revenue for decision afresh after providing proper opportunity to the petitioner on this limited question. The petitioner has claimed his possession of the land which has been denied by Muhammad Hanif respondent. However, pending disposal of matter by the Board of Revenue and the appointment of the Lambardar, none of the parties can claim any right of possession over the land, which shall remain with the Tehsildar concerned who shall determine the rights of the parties regarding the existing crops, if any. The parties are left to bear their own costs.