The brief facts out of which the present writ petition arises are that Hassoo, father of respondent No.4 was appointed by the respondents as Lumberdar of Chak No.76-ML, Tehsil and District, Bhakkar. Subsequently respondent No.4 was appointed as Lumberdar in place of his father. The residents of the said Chak were grantees under the provisions of the Punjab Colonies Act, 1912.
Subsequently the proprietary rights were given to the grantees of the said village by the respondents 50% of the grantees had secured the proprietary rights qua the land which had been taken into possession by them under the provisions of the aforesaid Act. The Assistant Commissioner (Revenue) having the powers of the Collector had requested the District Collector to be selected appointed Lumberdar in the said village. The name of the petitioner was recommended by the Revenue Officer to the Collector of the District. The Collector accepted the recommendations of the Revenue Officer and appointed the petitioner as Lumberdar of the said Chak vide order dated 23-9-1989. Respondent No.4 being aggrieved filed an appeal before the Commissioner, Sargodha Division, Sargodha who dismissed the same vide order dated 31-12-1989.
Respondent No.4 being aggrieved filed an appeal before the Member, Board of Revenue who accepted the revision petition vide order dated 26-6-1994. The petitioner being aggrieved tiled a Writ Petition No. 13628 of 1994 which was disposed of by this Court vide order dated 8-5-1995 with a direction to the Member, Board of Revenue to decide the revision petition afresh with permission to raise all the questions which have been raised in the Constitutional petition before the Member, Board of Revenue. The Member, Board of Revenue decided the revision petition afresh after remand and accepted the revision petition of respondent No.4 vide order dated 30-6-1996. Hence the present writ petition.
2. The learned counsel for the petitioner submits that the impugned order passed by the learned Member, Board of Revenue is violative of the law declared in as much as the petitioner being a permanent resident, educated and landowner in the estate in question, had a preferential right to be appointed as permanent Lumberdar as compared to respondent No.4 who admittedly is not a resident of the said Chak, is not an educated and that the reference to law of primogeniture made by the learned Member, Board of Revenue is not applicable in the facts and circumstances of this case. He further urges that respondent No.4 is admittedly not a resident of the village in question as is observed by the Member, Board of Revenue in the impugned order in para. 7. He further urges that initial appointment in the village as Lumberdar of the father of respondent No.4 was temporary in nature and subsequently respondent No.4 was also appointed as temporary Lumberdar. He further submits that the competent authority under the provisions of the Punjab Land Revenue Act and rules framed thereunder Punjab Land Revenue Rules, 1968 decided to appoint a permanent Lurnberdar in the said village. He further urges that respondent No.4 also submitted application for the post in question who was rejected on the basis of the report of the Revenue Officer by comparison between the petitioner and respondent No.4 by the District Collector vide order dated 23-9-1989 which was upheld by the Commissioner vide order dated 31- 12-1989. He further submits that the Collector and the Commissioner had concurrently found respondent No.4 disqualified to be appointed as Lumberdar against the post in question. The learned Member, Board of Revenue had set aside the orders of the authorities below in revision petition on the grounds which were not taken by respondent No.4 in grounds of appeal before the Commissioner and the memorandum of Revision Petition tiled by respondent No.4 before Member, Board of Revenue. He summed up his arguments that the impugned order of the Member, Board of Revenue is not in accordance with law laid down by the superior Courts. In support of his contention he relies upon the following judgments:--
(1) PLD 1963 W.P. (Rev.) 59 Risaldar Ghulam Muhammad Khan v. Muhammad Nawaz
(2) PLD 1964 W.P. (Rev.) 39 Ghulam Rasul v. Manzoor Hussain
(3) PLD 1967 W.P. (Rev.) 62 Khurshid Ahmed v. Shah Muhammad
(4) 1996 SCM R 1581 Muhammad Yousaf v. Member, Board of Revenue and 4 others
(5) PLD 1991 SC 531 Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P. Peshawar and 4 others
3. The learned counsel for respondent No.4 submits that respondent No.4 belongs to Baloch tribe whereas the petitioner belongs to Arain tribe. The Baloch tribe has 2262 Kanals of land in the said Chak whereas Arain tribe has less land as compared to Baloch. He further submits that 82 candidates qua the post in question had withdrawn for appointment as Lumberdar in favour of respondent No.4. He further submits that respondent No.4 is owner of land measuring 125 Kanals in the village in question and as also has his own Dera in the village. Responding No.4 is residing at a distance of 6 Miles from the village in question. Therefore, respondent No.4 is in a position to discharge his liabilities in terms of the West Pakistan Land Revenue Rules, 1968. He further urges that Constitutional petition is not maintainable as the Revenue Authorities are the best judges to fill the post in question in accordance with Rules. He further urges that the father of respondent No.4 was appointed originally as Lumberdar qua the post in question. Subsequently respondent No.4 was appointed without removing him, Collector has no lawful authority to invite applications to fill the post in question, therefore, the learned Member, Board of Revenue was justified to accept the revision petition of respondent No.4.
4. The learned Additional A.G. Submits that the Member, Board of Revenue has decided the controversy in accordance with law after applying his independent mind. He further urges that this Court has no jurisdiction under Constitutional jurisdiction to substitute its own findings in place of the Tribunal below.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. I would like to decide the preliminary objection first raised by the learned counsel for respondent No.4 and the learned Law Officer qua the maintainability of the Constitutional petition. It is a settled law that it is the duty and the obligation of the public functionaries to decide the controversy between the parties in accordance with law. In case the public functionaries fail to decide the controversy between the parties in accordance with law, then Constitutional petition is maintainable. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in the following judgments:-
(1) PLD 1987 SC 447 Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others.
(2) PLD 1991 SC 531 Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P. Peshawar and 4 others
7. The Member, Board of Revenue basically accepted the revision petition of respondent No.4 by considering the two factors qua the principle of inheritance with regard to the post in question and respondent No.4 was not legally removed by the competent authority before filling the post in question in accordance with law. It is pertinent to mention here that respondent No.4 did not take the aforesaid grounds or attack qua the appointment of the petitioner in his memorandum of appeal before the Commissioner and memorandum of revision petition before the Member, Board of Revenue. Therefore, the Member, Board of Revenue erred in law while accepting the revision petition on extraneous grounds which were not taken by respondent No. 4 before the Member, Board of Revenue. In arriving to this conclusion I am fortified by law laid down by this Court in the following judgments:--
(1) 1984 CLC 2973 Ch. Ghulamullah v. Board of Revenue, West Pakistan, Lahore and 4.Others;
(2) 2000 CLC 847 City Bank N.A.A Banking Company through Attorney v. Riaz Ahmed The principle of primogeniture has already been declared un-Islamic by the Honourable Supreme Court in Shariat Appellate Bench reported as PLD 1999 SC 484 Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan.
8. The second ground that respondent No.4 was not legally removed by the competent authority under the provisions of the West Pakistan Land Revenue Rules, 1968 has no force on the well-known principle of approbate and reprobate, as per principle laid down by the honourable Supreme Court in Ghulam Rasul's case PLD 1971 SC 376. It is pertinent to mention here that respondent No.4 submitted his application qua the post in question and did not challenge the order or the Collector inviting the applications to till the post in question. The Member, Board of Revenue had given his findings in para. 7 that respondent No.4 is a resident of adjacent Chak. Thereafter, the learned Member, Board of Revenue did not proceed further to observe that absence of respondent No.4 from the estate did not hinder the performance of duties as Lumberdar. Therefore, he did not decide the controversy between the parties after applying his independent mind and the dictum laid down in the cases of Ch. Ghulamullah v. Board of Revenue, West Pakistan, Lahore and 4 others 1984 CLC 2973 and Masood Ahmad v. Member (Revenue), Board of Revenue and others 1982 CLC 357.
9. It is settled principle of law that the matter of appointment of a Lumberdar is essentially an administrative measure and ff petitioner/respondent No.4 could not lay any claim to that office as of a right. In arriving to this conclusion, I am fortified by the law laid down by the Superior Courts in the following judgment:-- 1971 SCM R 719 Abdul Wahid v. The Member, Board of Revenue, Punjab Lahore and another.
The aforesaid principle of law is also considered and followed in the following judgments:--
(1) 1972 SCM R 253 Muhammad Shafi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others;
(2) 1996 SCM R 1581 Muhammad Yousaf v. Member, Board of Revenue and 4 others.
It is also a settled principle of law that the office of a Lumberdar is an administrative arrangement to serve as a link between the villagers and the local authorities. Therefore, it was essentially an administrative measure by which a Lumberdar is appointed by the Collector, as per the principle laid down by this Court in the cases of Nazir Ahmed 1987 M LD 2269, Masood Ahmed v. Member (Revenue), Board of Revenue and others and PLD 1973 Lahore 359 Allah Ditta v. Mian Nasir Ahmed and another.
10. It is the duty and obligation of the competent authority at the time of appointing any person as a Lumberdar, the following factors must be considered in terms of the law laid down by the superior Courts by interpreting the aforesaid rules in various judgments:-
(1) Strength of character.
(2) Education.
(3) Knowledge and engagement national building activities.
(4) Capacity to discharge the rights and obligation towards his fellow-beings alongwith the disqualification prescribed by the competent authority, in rule 18(2) of the Land Revenue Rules, 1968, duties of headman in rule 22.
11. In arriving to this conclusion I am fortified by the following judgments:--
(1) PLD 1999 SC 484 Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan;
(2) 1996 SCM R 1581 Muhammad Yousaf v. Member, Board of Revenue and 4 others.
12. In view of what has been discussed above, I am of the view that the learned Member, Board of Revenue has not decided the controversy between the parties after applying his independent mind in the impugned order. Therefore, the order of the Member, Board of Revenue is set aside, the Member, Board of Revenue has decided the controversy on extraneous grounds without adverting to the grounds taken by respondent No.4 in Memorandum of revision petition, therefore, the case is remanded to the Member, Board of Revenue to decide the case afresh in accordance with law without being influenced by the aforesaid observation of this Court strictly in accordance with law.
13. Parties are directed to appear before the Member, Board of Revenue on 15-5-2003, who is directed to decide afresh the revision petition of respondent No.4/after applying his independent mind, in accordance with law within six months after receiving the judgment of this Court.
14. With this observation, the petition is remanded to the Member, Board of Revenue.