' Through this Consolidated judgment, I intend to dispose of Writ Petition No,9099 of 2001 and Writ Petition No,10044 of 2001, as both have arisen from the order passed by the Senior Member (Revenue), Board of Revenue, Punjab, Lahore.
2. The Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been directed against the order, dated 10-4-2001 of Senior Member (Revenue), Board of Revenue, Punjab, Lahore respondent No,1, whereby he upheld the order, dated 28-12-1999 of the Commissioner, Lahore Division, Lahore, accepting the appeal of Muhammad Yar son of Munshi Khan respondent No,4 appointing him as Lambardar by setting aside the order of the District Collector dated 11-5-1993.
3. Briefly stated the facts of the case are that Munshi Khan father of the petitioner and that of Muhammad Yar respondent No,4, who was the Lambardar, died on 17-7-1992. The post of Lambardar, having thus fallen vacant, was to be filled in by the District Collector/Deputy Commissioner, District Okara, who in due course of time, invited applications in that behalf. The relevant data and inquiry was made by the Field Officer. There were seven candidates into contests. The particulars of those seven candidates, as given by the Field Officer, who contested the case before the District Collector, Okara, are shown against their names as under:-- Sl.No.Name and ParentageCaste Age EducationLand held K M
1. Muhammad Yar s/o Munshi KhanHarni 40 years Matric. 76 - 16
2. Muhammad Afzal s/o Munshi KhanHarni 51 years Matric 10 - 16
3. Hap Muhammad Yaqoob s/o Haji Muhammad Bakhsh-do- 57 years Primary 90 - 00
4. Abdul Wahab s/o Mehanga-do- 50 years Primary 33 - 11
5. Jalal Din s/o Heera-do- 55 years Middle 49 - 11
6. Wali Muhammad s/o Barkat Ali-do- 65 years Primary 13 - 17
7. Bashir Ahmad s/o Ghulam Muhammad-do- 65 years Primary 11 - 02 ' The District Collector, taking it as a case of "First Appointment" as envisaged by Rule 17 of the West Pakistan Land Revenue Rules, 1968, appointed Wali Muhammad son of Barkat Ail respondent No,6 as Lambardar of the Revenue Estate. Muhammad Afzal petitioner being elder son of deceased Lambardar, assailed the order dated 11-5-1993 before the Commissioner. This order was also challenged by other contestants through appeal before the Commissioner, Lahore Division, Lahore respondent No,2, who vide his order dated 6-6-1995, dismissed the appeal preferred by the petitioner, Muhammad Yar respondent No,4 and Muhammad Yaqoob. However, by accepting the appeal preferred by Jalal Din and Abdul Wahab, vide order, dated 6-6-1995, remanded the case to the District Collector for passing fresh orders by recording reasons. This order of the Commissioner dated 6-6-1995 was further challenged by Muhammad Afzal petitioner by filing Revision Petition No,2125 of 1995, which was accepted by the Member, Board of Revenue vide order, dated 2-3-1998.
Similarly, revision petition filed by Muhammad Yar respondent No,4 and Wali Muhammad rival contestants were also accepted. The Member, Board of Revenue set aside the order of the Commissioner, Lahore Division, Lahore and remanded the case to him directing him to decide the case on merits according to the law after hearing all the candidates vide his order, dated 2-3-1998.
In the post remand proceedings, the matter was taken up by the Commissioner. Muhammad Yaqoob and Bashir Ahmad contestants did not put in appearance and were, therefore, proceeded ex parte with the result that Muhammad Afzal petitioner, Muhammad Yar, Abdul Wahab respondent No,6 and Jalal Din remained in the 'field as contestants. The Commissioner vide order, dated 28-12-1999 accepted the appeal of Muhammad Yar respondent No,4 by setting aside the Collector's order dated 11-5-1995 and appointed him as Lambardar of the Revenue estate.
Muhammad Afzal petitioner alongwith Wali Muhammad and Abdul Wahab filed separate revision petitions before the Member, Board of Revenue. All the revision petitions mentioned above were taken together and were decided through a consolidated order, dated 10-4-2001, whereby the Member Board, of Revenue, upheld the order, dated 28-12-1999, passed by the Commissioner.
However, it was observed that the District Collector, if moved in respect of respondent No,4, could proceed and decide the case under rule 18 of the West Pakistan Land Revenue Rules, 1968.
4. Learned counsel for the petitioner contends that instant was a case, which falls under rule 19 of the West Pakistan Land Revenue Rules, 1968 and the respondents Nos.1 to 3 have committed illegality in having treated it as case covered under Rule 17. In the alternative, it is argued that if the case is said to be covered by rule 17, the respondents were under legal obligation, while making the appointment of Lambardar to have considered the qualification of the petitioner mentioned in rule 17(a) and rule 17(c). Precise submission of the learned counsel is that the petitioner was to be appointed as Lambardar on the basis of his "hereditary claim" and "Services rendered by him to the Government". Learned counsel states that in this context, the respondents have failed to take note of the above-stated law and qualification. Further contends that petitioner being the elder son of the deceased Lambardar namely Munshi Khan has thus, preference over rest of the contestants including Muhammad Yar respondent No,4. Further contends that the petitioner is an ex-service man of Pakistan Army. Adds that the respondents have illegally non-suited the petitioner on the ground that petitioner has been involved in a criminal case. He states that petitioner has been acquitted in the murder case and the Division Bench of the Hon'ble High Court, who admitted the appeal of the State for regular hearing has dismissed the same.
5. Learned counsel for Wali Muhammad (petitioner in Writ Petition No,10044 of 2001) contends that the District Collector appointed the petitioner as Lambardar 'vide his order, dated 11-5-1993 on the ground that the petitioner has a clean record He was experienced and his personality was undisputed. There was no case pending against him and that he was most suitable person for appointment as Lambardar as he owns 13 Kanals and 7 Marlas land in the Mauza. He also owns 3- 1/2 acres land in the adjoining village. There is no complaint whatsoever against Wali Muhammad and his record is unblemished. According to him, Wali Muhammad was a fit person to be appointed as Lambardar under rule 17 of the West Pakistan Land Revenue Rules, 1968. Further contends that the other two candidates namely Muhammad Yar and Muhammad Afzal sons of deceased Lambardar Munshi Khan, are involved in litigation against each other and there is acute enmity between Muhammad Yar and Muhammad Afzal and in such a situation, the decisions taken in appeals by the Commissioner and by the Member, ' Board of Revenue, are not legally sustainable.
6. Conversely,' learned counsel for the respondent No,4 Muhammad Yar contends that there is no litigation pending between Muhammad Yar and his brother Muhammad Afzal. Civil litigation between him and his brother Muhammad Afzal, over the property gifted to him by his father has ended in his favor. Further contends that Muhammad Afzal was involved in a murder case. Learned counsel contends that Muhammad Yar respondent No,4 was a better candidate than the rival contestants namely. Wali Muhammad, Muhammad Afzal, Abdul Wahab and Jalal Din on account of better qualification being matric and having large holding of land. Further contends that Muhammad Yar respondent had been working as "Sarbrah Lambardar" during the lifetime of his father Munshi Khan and successfully performed his duties, which is an extra qualification for him.
Learned counsel for the respondent further contends that Lambardari is a question of practical need and other requirements of which Authorities concerned were better judges. Since the Authorities have shown full justification on the touchstone of guidelines laid down in Rules regarding appointment of Lambardar, this petition under Article 199 of the Constitution, is not maintainable. Reliance has been placed on Shaukat Ali and another v. Muhammad Shafi and 2 others (1991 SCM R 1504). Further contends that rule 19 of the West Pakistan Land Revenue Rules, 1968, is merely directory and providing guideline for choice of successor Lambardar and, therefore, does not confer any right in favor of petitioner Muhammad Afzal being elder son of Munshi Khan. He stressed that appointment rests in discretion of graded hierarchy of Revenue Officer and the Officers in view of their experience and training better qualified to make choice than Courts of general jurisdiction. In this regard, learned counsel has cited Ghulam Hussain v.
Ghulam Muhammad and another (1976 SCM R 75). Finally, learned counsel on the strength of case reported as Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan (PLD 1999 SC 484), argues that rule 19(2) of the Punjab Revenue Rules, 1968, has been declared to be repugnant to the Injunctions of Islam as contained in Holy Qur'an and Sunnah, therefore, petitioner Muhammad Afzal cannot claim the office of Lambardar on the basis of rule of "primogeniture".
7. The pivotal question involved in the case is as to whether the appointment of the successor of 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. Rule of primogeniture is not based on the principle of right of inheritance. The succession in the appointment of Lambardar, therefore, cannot be claimed as is inherited in the property. The word "primogeniture" as defined in Encyclopeadia Britannica in its 11th Edition is as under:-- "A term is used to signify the preference in inheritance which is given by law, customs, usage to the eldest son and his son."
' The definition of primogeniture" given in 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."
' Coming to the facts of the present case and keeping in view the definition stated above, Muhammad Afzal petitioner the elder son, could have been appointed on the basis of Rule 19(2) of the West Pakistan Land Revenue Rules, 1968, but he having been found not suitable person, the respondent No,4 Muhammad Yar, who was second son of the deceased Lambardar, was entitled to be appointed as Lambardar on the basis of Rule 17. There is no cavil with the proposition that son of Muhammad Afzal, 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. In Ghulam Hussain's case 1976 SCM R 75, it has been held that Rule 19 is merely directory and providing guideline for choice of successor Lambardar and it does not confer any right on any person on the basis that he is the son of the deceased Lambardar. Even otherwise, this rule 19(2), has been declared against the Injunctions of Islam as held in case of Maqbool Ahmad Qureshi PLD 1999 SC 484. In this view of the matter, the petitioner Muhammad Afzal could have not claimed the appointment of Lambardar on the basis of rule 19(2) of West Pakistan Land Revenue Rules, 1968 simply on the ground that he is the elder son of deceased Lambardar. No doubt respondent No,4 Muhammad Yar cannot claim appointment being son of deceased Lambardar under rule 19(2), however, his case for the purposes of appointment of Lambardar under rule 17 of the Rules in question, could have looked into. The case of the respondent No,4 was considered and vis-a-vis petitioner and other contesting candidates and it was found that respondent No,4 was a suitable candidate to be appointed as Lambardar.
8. 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 authorities were not required to be judged on the basis of criteria laid down therein. The cases of all the contesting candidates were before the Commissioner at the time of passing the order, who accepted, the appeal of respondent No,4 Muhammad Yar by setting aside the order of the Collector and appointed him as Lambardar. I have found the particulars as shown against their names of the contesting candidates and found that Muhammad Yar is a 40 years of age and is better qualified being matric and owns 76 Kanals and 16 Marlas of land. Only Haji Muhammad Yaqoob owns 90 Kanals of land, but he was only primary pass and is not in the contest. Similarly, Muhammad Afzal petitioner was not only involved in a murder case, but owns only 10 Kanals and 16 Marlas of land. No doubt Muhammad Afzal petitioner was acquitted by the Sessions Court in the murder case and Criminal Appeal No,1004 of 1988 filed by the State against his acquittal was dismissed on 18-7-2001, but it was a matter to be considered by the authorities, who are best Judges under the law to consider the suitability of the candidates for appointment of Lambardar.
Wali Muhammad the other contestant is also primary pass and having 13 Kanals and 7 Marlas of land. It is well-settled law that findings of the appellate and the revisional authorities regarding the suitability or non-suitability of the candidate to be appointed Lambardar under rule 17 of the West Pakistan Land Revenue Rules, 1968, are not questionable before the High Court in writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan. In case reported as Ghulam Hussain v.
Ghulam Muhammad and another (1976 SCM R 75), the Hori'ble Supreme Court while interpreting Rule 19(2)(a) of the West Pakistan Land Revenue Rules, 1968, has held:-- "On its proper construction far from conferring any right much less a legal right, the rule at best is directory which provides a guideline for the choice of the successor Lambardar, the whole object being to appoint a person in the opinion of the appointing authority the most fit person from among eligibles under Rules. It would be wrong to impart greater efficacy to the above rule.
Moreover, fitness cannot be judged by any objective standard: it is primarily a subjective process, in which the opinion of the appointing authority is the crucial factor. Even oh general principles, the appointment rests in the discretion of the graded hierarchy of Revenue Officers created by the West Pakistan Land Revenue Act, who because of their experience and training are better qualified to make the choice than the Courts of general jurisdiction. In such cases, the matter is not to be approached as if it were a dispute relating to property or franchise. "
' In case of Abdul Ghafoor v. The Member (Revenue), Board of Revenue and another (1982 SCM R 202), it has been ruled:-- "No one has a vested right to be appointed as Lambardar. Relevant authorities to select persons best suitable for purpose with a view to facilitate performance of administrative functions of Lambardar."
9. The Commissioner in this case being the competent authority on the Revenue side after considering merits of all the candidates, ultimately selected respondent No,4 for such a office even final order of the Board of Revenue was in favor of the respondent No,4. On the facts and circumstances of the case, it is not proper to interfere with the well-reasoned and well-considered order passed by the Commissioner and the Board of Revenue in exercise of Constitutional jurisdiction of this Court. Resultantly, both these petitions fail and are dismissed.