' This writ petition impugns an order, dated 6-7-1999 passed by Mr. Muhammad Khalil Bhatti, Member (Judicial-II), Board of Revenue Punjab, in R.O.R. No,961 of 1998.
2. The revision petition was filed by the present respondent against an order of the Commissioner, Sargodha Division, Sargodha, dated 2-6-1998, wherein he had challenged the appointment of his brother, the present petitioner, as Lumberdar in Mauza Tarag Sharqi, Tehsil Isakhel, District Mianwali.
3. Previously, their father Isa Khan was the Lumberdar of Mauza Tarag Sharqi who died in 1997. The deceased was survived by four sons, two of whom are surviving. The deceased had two wives.
Maddad Khan Petitioner was from one of the wives. The petitioner and the respondent No,2 are half brothers and are rival contestants for the post of LutnberdRr of Mauza Tarag Sharqi.
4. Four persons were aspiring for this post. Two of whom were other than the present two brothers.
The Tehsildar Isa Khel recommended the name of Saifullah Khan, respondent No,2, for the post of Lumberdar, but his recommendation was not approved by the Collector, Isa Khel, who recommended the name of Maddad Khan petitioner for appointment as permanent Lumberdar for the village. Upon whose recommendation, the District Collector after hearing both the parties, appointed Maddad Khan as a permanent Lumberdar vide his order, dated 27-10-1997.
5. These orders were impugned not only by Saifullah Khan but also by Muhammad Ramzan (not a parry before this Court).
6. Before the Commissioner, Sargodha Division, Sargodha, Saifullah Khan appellant assailed the appointment of his half brother Maddad Khan on the ground that Maddad Khan was not suitable for being appointed as a Lumberdar because even his father, the deceased Lumberdar, had disinherited him from the property and had signed a will desiring that Saifullah should take over the charge as a Lumberdar in his place. It was his case that le owned 31 Kanals of land which was enough for meeting the Zare-e-Bhart, while the respondent was a small owner having about 11 Kanals of land. Muhammad Raman had claimed that his eligibility was better than the two brothers.
7. According to Maddad Khan, Saifullah Khan was ineligible because he was previously involved in a case under section 302 of the Pakistan Penal Code as well as under section 376 of the Pakistan Penal Code and had suffered an imprisonment for 7 years' R.I. In rape case and was released from jail after the expiry of imprisonment. It was his case that he was the eldest son and had sufficient land for meeting the Zar-e-Bhart. That he had served in the Education Department as a Teacher and is better qualified than his brother as well as anybody else.
8. The learned Commissioner, Sargodha Division, Sargodha, through his order, dated 26-9-1998 came to the conclusion that the post of Lumberdar is to be given to one of the progenies of the previous Lumberdar and declared that Maddad Khan was suitable for it and dismissed the appeal.
9. The matter was taken up in revision by the present respondent Saifullah Khan under section 164 of the West Pakistan Land Revenue Act, 1967. Whereas, the learned Member (Judicial-II), Board of Revenue, gave finding that Saifullah was an unfit person for the post of Lumberdar in view of his previous conviction involving moral turpitude. But the learned Member, Board of Revenue, also opined that Maddad Khan too was not a good choice and may not be able to perform his duty properly. He directed the District Collector to invite fresh applications under Rule 17 of the Land Revenue Rules, 1968, for the appointment of a Lumberdar for this Mauza. He allowed the petitioner as well as rest of his half-brothers who are real brothers of Saifullah to compete and asked the District Collector to appoint the best candidate after observing the formalities required under law.
10. This order of the learned Member (Judicial-II), Board of Revenue, is being assailed through this writ petition on inter alia the following grounds:- "(a) That Zar-e-Bhart of the village is about Rs,1,400 while the petitioner is owner of 11 Kanals and 6 Marlas, which was sufficient for the payment of Mart. Moreover, it is small village and all the landowners are very small owners, therefore, merely because the petitioner being a small owner is no ground to refuse appointment to the petitioner.
(b) That the petitioner has three step-brothers, who were contesting for the appointment of Lambardar. Naturally the persons who were contesting for appointment against the post of Lambardar would not support the case of the petitioner whereas whole of the village supported the petitioner for appointment as Lambardar and no person came forward to contest the appointment.
(c) That though the rule of primogeniture was applicable but the applications were invited from all the landowners. All withdrew and the contest remained only between the petitioner and his stepbrother, therefore, the appointment of the petitioner was not affected by the latest pronouncement given by the Honourable Supreme Court as the merits of the petitioner were considered and after consideration the petitioner was appointed as Lumbardar.
(d) That the learned Member, Board of Revenue failed to advert to the rule and judicial pronouncements of the superior Courts that the petitioner being recommendee by all the authorities, the appointment by the Courts below could not have been dislodged by the Member, Board of Revenue, Punjab."
11. According to the learned counsel for the petitioner, the Member, Board of Revenue while coming to the findings which are impugned, did not consult the record for ascertaining whether the present petitioner was eligible or not. Because if he had done so, there was evidence to show that he was owner of 11 Kanals of land which was sufficient for purposes of Zar-e-Bhart which is around 1,400 Rupees. That besides he was also a pensioner drawing a pension of Rs,1,500. That, therefore, the findings of the Member, Board of Revenue were out of the record.
12. The operative part of the order of the learned Member, Board of Revenue is reproduced below:-- "I have considered the arguments of both the parties and facts of case. Saifullah Khan, petitioner is decidedly an unfit person for holding the post of Lambardar because he was convicted for moral turpitude. Maddad Khan is owner of very small piece of land and is not supported by his own brothers. So, he may not be a good choice in the present circumstances and may not be able to perform his duties as a Headman to assist the law and order and Revenue Agencies. It is further observed that when the new Lambardar will be appointed, the present position of law should prevail which is that the Honourable Supreme Court of Pakistan has declared the Rule of Primogeniture as void. The decision does not bar the sons of the deceased Lambardar from the competition. So, the petition is disposed of with the direction that appointment Maddad Khan, respondent as Lambardar is set aside. The District Collector may invite applications for appointment as Lambardar under Rule 17 of the Land Revenue Rules, 1968. Maddad Khan, respondent and brother& of Saifullah Khan, petitioner may compete with the other respectables of the village and the D.C./District Collector may make the appointment of the best candidate after observing the formalities required under law and rules on the subject."
13. The learned Member, Board of Revenue had briefly touched the grounds on which he was holding Maddad Khan, as unsuitable candidate for the job of Lambardar. His being an owner of a small piece of land, was not the sole ground. It was in the mind of the learned Member, Board of Revenue that he was having rivalry with his brothers and this may have problems for him in the performance of his duty as a Headman to assist the law and order and Revenue Agencies.
14. Since the colonial days the institution of the Headman/Lambardar had been a strong link between the village and the estate. In the book Punjab Land Administration and Management Manual by McCDoule's & M Corrie's, the duties of the Lambardar are given as follows:-- "The headmen of a village act on behalf of the landowners, tenants and other residents in their relations with the State. They are bound to attend when summoned by officers of Government, and to aid them in the execution of their public duties. Their important functions as regards the prevention and detection of crime do not fall within the scope of this work. Their chief duties are set forth in some detail in a vernacular memorandum which is given to each headman on his appointment."
15. At the time when Charles Aitchison gave the proposal for the construction of canals in the Punjab and where after the Colony Manual was made for these areas, a guideline for purposes of qualifications of Lumberdar was given in the following words:-- "In the ordinary peasant village the ideal Lambardar will be a man of good character, unburdened by debt, who is literate, has brought with him from his old home influence over a considerable number of his fellow colonists and has been energetic in fulfilling the conditions of his tenancy and in assisting the colonization and irrigation officers to the utmost of his power. The Colonization Officer is in a position to demand a high in appointing the first Lambardars in a village and he should make full use of his opportunity. In making subsequent appointments, the practice has been to give due weight to hereditary claims, if the first incumbent has rendered satisfactory service; but as long as the colonists or a majority of them are in the position of Government tenants, Land Revenue Rule 17(1) continues to apply. This point has been emphasized in recent rulings by the Financial Commissioners, in which they have laid down that the hereditary principle affords a simple guide where comparative merits are approximately equal or unimportant; but until proprietary rights are acquired the Collector has a clear discretion and should select the best man from amongst the colonists in the village whenever he considers that the hereditary principle is not suitable to the case (Financial Commissioner's R.O.R. Nos.75 and 17 of 1929-30)."
16. Rule 22 of the Land Revenue Rules, 1968 takes support from what has been said above in the Punjab Land Administration and Management Manual, while mentioning the various duties of the Lumberdar, which are as follows:-- "Duties, of headmen.--- In addition to the duties imposed upon headmen under any other law, a headman shall--
(i) collect, by due date, the land revenue and all sums recoverable as land revenue, from the estate, or sub-division of an estate in which he holds office, and pay the same personally or by revenue money-order or by remittance of currency notes through the post or at place where treasury business is conducted by the State Bank of Pakistan, or any other Bank, by cheque, on a local Bank, at the place and time appointed in that behalf, to the Tehsildar concerned;
(ii) collect the rents and other income of the common land, and account for these to the persons entitled thereto;
(iii) issue receipts in Form 1 to the landowners and others, in token of having recovered the Government dues from them;
(iv) report, to the Tehsildar, all encroachments on roads (including village roads) or on Government waste lands and injuries to, or appropriation of Government property situated within the estate;
(v) report any injury to public buildings in the estate;
(vi) implement, to the best of his ability, any orders that he may receive from the Collector, requiring him to furnish information or to assist in providing, on payment, supplies or means of transport, for troops or for officers of Government on duty;
(vii) assist, in such manner as the Collector may from time to time direct, at all crop inspections, recording of mutations, surveys, preparation of records-of-rights, or other revenue business within the estate;
(viii) attend the summons of all authorities having jurisdiction in the estate; assist, when so required by them, all officers of the Government in the discharge of their duties, furnish all relevant information in this behalf and generally act for the landowners, tenants and other residents of the estate or sub-division of the estate, in which he holds office, in regard to their responsibilities to the Government;
(ix) report to the Patwari any outbreak of disease among human beings or cattle in the estate or sub-division of an estate in which he holds office;
(x) report to the Patwari the deaths of any right-holders in the estate, or sub-division of the estate, in which he holds office;
(xi) report any breach or cut in a Government Irrigation canal or channels, to the nearest Canal Officer, Ziladar or Canal Patwari;
(xii) under the general or special directions of the Collector, to use his good offices to assist all officers of Government and other persons, duly authorized by the Collector, in the enrollment of military personnel."
' Therefore, mere collection of land revenue is not the sole function of the Lumberdar.
17. While Rule 17 of,these Rules lays down the matters which are to be considered for appointment of a Lumberdar. Rule 17 is reproduced below:-- "Matters to be considered in first appointment.--- In all first appointments of headmen regard shall be had among other matters to,---
(a) the hereditary claims of the candidate;
(b) extent of property in the estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate, the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate;
(c) service rendered to the Government by him or by his family;
(d) his personal influence, character, ability and freedom from indebtedness;
(e) the strength and importance of the community from which selection of a headman is to be made;
(f) his ability to undergo training in Civil Defence in the ease of headmen in Tehsils situated along the Border."
18. The rules of primogeniture are no longer to be observed in this connection.
19. While keeping in mind the duties which are to be performed by a Lumberdar in a village, it is imperative that a person without much rivalry should be considered if he is otherwise eligible. The present petitioner has rivalry with his brother Saifullah and also with his other half brothers. So much so that according to them, he was not even the real son of their father and this deposition they had made before the Commissioner, Sargodha Division, Sargodha, which is reflected in the order.
20. That with this background, one wonders if Maddad Khan petitioner will be able to perform his duties as a village Headman as envisaged under Rule 22 of the West Pakistan Land Revenue Rules, 1968, and what is said above.
21. Saifullah has been disqualified and Maddad Khan can compete afresh as per the observation of the Member, Board of Revenue, alongwith his other half-brothers for the post of Lumberdar left by their father.
22. The Board of Revenue in its supervisory capacity can always look into such facts and correct errors committed by the subordinate authorities while exercising powers under section 164 of the West Pakistan Land Revenue Act, 1967.
23. The impugned order was, therefore, within the competency of the Member, Board of Revenue.
Both the parties were heard by the Member, Board of Revenue and the finding that the present petitioner was also not suitable for the appointment of a Lumberdar for reasons already given above was unexceptional. The present petitioner has still an opportunity of contesting for this post alongwith any other member of the family of the previous Lumberdar and for which purposes the direction has already been issued to the Collector.
24. After hearing the learned counsel from both the sides, this Court does not find any justification for interference in the order of the Member (Judicial-II), Board of Revenue. The writ petition, therefore, fails and it is dismissed.