' I intend to decide the following writ petitions by one consolidated order having similar facts between the same parties interdependent upon each other:--
(i) W.P. No.10449 of 2004.
(ii) W.P. No.10450 of 2004.
2. The brief facts out of which the aforesaid Constitutional petitions arise arc that the original Nambardar of the village in-question Muhammad Saddique died. The Collector concerned invited the applications for the appointment of the Nambardar in the village. Seven candidates have submitted their applications, out of which Muhammad Tahir and Muhammad Ihsan contested.
Resultantly, the District Collector appointed Muhammad Tahir as Nambardar of the village in question. Respondent No.4 being aggrieved filed appeal before the Commissioner. Who accepted the same vide order dated 18-2-1997 and remanded the case to the District Collector, Okara, for fresh decision. ,The District Collector Okara, after remand invited fresh applications to fill in thepost in question vide order dated 18-10-1997. Seventeen candidates submitted their applications but finally six candidates were remained in the field, who contested their applications to be appointed them in the post in question. The District Collector appointed the petitioner as Nambardar of the village vide order dated 20-12-1999. Respondents Nos.2 and 4 and Muhammad Din being aggrieved filed three appeals against the appointment of the petitioner in the post in question before the Commissioner, Lahore Division, Lahore, who dismissed the three appeals vide order dated 2-11-2000. Respondent No.2 filed R.O.R. No.163 of 2001 before the Member Board of Revenue Judicial IV. Muhammad Din also filed R.O.R. No.417 of 2001 before the Member Board of Revenue Judicial IV. The Member Board of Revenue Judicial IV accepted the revision petition of Ch. Abdul Ghafoor vide order dated 28-10-2003 and remanded the case to the Executive District Officer (Revenue) for fresh decision on his appeal. The petitioner being aggrieved filed Constitutional Petition No.10442 of 2004 before this Court whereas the Member Board of Revenue JUdicial IV remanded the case while accepting the revision petition of Muhammad Din to the said authority vide impugned order dated 13-4-2004 on the basis of the earlier order dated 28-10-2003. The petitioner being aggrieved filed Constitutional Petition No.10450 of 2004.
3. The learned counsel of the petitioners submits that both' the Tribunals below have concurrently decided in favour of the petitioners upto the level of the Commissioner whereas the Member Board of Revenue Judicial IV has set aside the same while exercising revisional powers. The Member Board of Revenue Judicial IV did not find any infirmity or illegality in the impugned orders of the Tribunals below, therefore, the learned Member Board of Revenue Judicial IV was not justified to set aside the concurrent finding of fact while exercising revisional powers. He further submits that the Member Board of Revenue Judicial IV has no lawful authority to reverse the concurrent finding of fact on the basis of another view while reappraising the evidence on record. He further submits that both the Tribunals below were justified to consider this aspect of the case that there are three posts of Nambardar in the village in-question out of which two Rajputs have already been appointed by the competent authority and this was a relevant consideration to appoint the petitioner as Nambardar against the third post belonging to the Arain Bratheri. He further submits hat question of appointment of post in-question of Nambardar is not vested right and this fact was not considered by the Member Board of Revenue "Judicial IV in its true perspective. He further submits that the District Collector has exercised his powers after providing proper hearing to all the candidates and appointed the petitioner; therefore, the Member Board of Revenue Judicial IV was not justified to interfere in the area ofdiscretion of the District Collector, who has exercised jurisdiction with cogent reasons.
4. Mr. Muhammad Hanif Khatana, Addl. Advocate-General, entered appearance on Court's call, he submits that Constitutional petitions are not maintainable.
5. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce Rule 17 of the West Pakistan Land Revenue Rules, 1968 and operative part of the impugned order of the Member Board of Revenue Judicial IV dated 28- 10-2003 to resolve the controversy between the parties:-- "Rules 17 : Matter 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) services 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 case of headman in Tehsils situated along with the Border.
Operative Part of Order: ' In view of the above discussed position the Commissioner Lahore Division having dismissed the appeal of the petitioner without any proper appraisal of the factual and the legal position and without any valid grounds, his impugned order is set aside and the case is remanded to the Executive District Officer (Revenue) Okara for fresh decision on the appeal of the petitioner. He shall decide the case after making sure ascertainment about the finding of the District Collector that the disputed post stood reserved for Arain Community. If it is proved otherwise, then the EDO(R) shall decide the case by evaluating the merits of the claims of the respective candidates in terms of the direction laid down under rule 17 of the Land Revenue Rules, 1968. There being an allegation of the respondent being an absentee from the Chak, the EDO(R) shall look into this aspect as well in accordance with law. Muhammad Din and Muhammad Ehsan having been unnecessarily impleaded as respondents in this Revision Petition, no observations required to be made about the merits of their candidature."
' In case the aforesaid provisions of the law and operative part of the impugned order of the Member Board of Revenue be put in a juxtaposition then impugned order passed by the Member Board of Revenue is in consonance with the provisions of law. The District Collector has exercised discretion without adverting to the parameters prescribed by the Legislature in its wisdom in rule 17, therefore, the District Collector was not justified to appoint the petitioners merely on the Bradhery basis unless and until the post in question is reserved for a particular community by the competent authority, which was not placed on record before the District Collector as well as before the Commissioner. The foundation of the case is missing that is why the Member Board of Revenue has remanded the case to the Executive District Officer Revenue concerned. It is settled principle of law that discretion must be exercised judiciously, based on basic principle of fairplay but the District Collector has exercised discretion in violation of the provisions of law, which was upheld by the Commissioner without application of mind and in fact the Commissioner has countersigned the order of the Collector, therefore, order of the Commissioner is not sustainable in the eye of law as the law laid down by the Honourable Supreme. Court in Ghulam Mohy-ud-Din's case (PLD 1964 SC 829). The Member Board of Revenue was justified to remand the case to the Collector with cogent reasons as the law laid down by the Honourable Supreme Court in Risaldar Abdul Majid Khan v.
Captain Daood Khan and another (1968 SCMR 77). The relevant observation is as follows:-- "The matter was one within the jurisdiction of the learned Member, Board of Revenue and he seems to have exercised his discretion properly after consideration of all the facts and circumstances of the case."
It is settled principle of law that Constitutional petition is not maintainable against the remand order as the law laid down by the superior Courts in the following judgments:- ' Muhammad llyas Khan v. Muhammad and others (1986 SCMR 251).
' Ghulam Rasul and others v. Khudai Dad and others (PLD 1986 Quetta 130).
' Ramzan v. Rehabilitation Commissioner, Sargodha (PLD 1963 Lahore 461).
' Mst. Kaniz Fatima and 3 others v. Member Board of Revenue (PLD 1973 Lahore 495).
It is also settled principle of law that Constitutional petition is discretionary in character where the substantial justice has been done between the parties, then this Court can refuse this discretion in favour of the petitioner, who wants benefits of an order, which is not in consonance with Article 4 of the Constitution read with Rule 17 of the West Pakistan Land Revenue Rules, 1968. It is duty and obligation of the public functionaries to act in accordance with law in view of Article 4 of the Constitution as the law laid down by the Honourable Supreme Court in Utility Corporation's case (PLD 1987 SC 447). Even otherwise, after addition of section 24-A in the General Clauses Act, which is procedural in nature and has retrospective effect according to which public functionaries have to decide the controversy between the parties after proper application of mind as the law laid down by the Honourable Supreme Court in the following judgments:-- ' M/s. Airport Support Service v. The Airport Manager Karachi, Airport (1998 SCMR 2268).
' Zain Yar Khan v. The Chief Engineer CRBC WAPDA and others (1998 SCMR 2419).
' Coupled with the fact that the order was passed by the Member Board of Revenue on 28-10-2003.
The petitioner has filed Constitutional Petition No.10449 of 2004 on 26-6-2004. Similarly, Member Board of Revenue has passed the impugned order on 13-4-2004 against the petitioner against which the petitioner has filed Constitutional Petition No.10450 of 2004 on 26-6-2004, which are liable to be dismissed on the well-known principle of laches as the law laid down by the Honourable Supreme Court in Khiali Khan v. Haji Nazir and 4 others (PLD 1997 SC 304). As mentioned above, petitioners did not file the Constitutional petition immediately, _ therefore, I am not inclined to exercise my discretion in favour of the petitioners as the law laid down by the Honourable Supreme Court and the Full Bench of this Court in the following judgments:-- ' Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 SC 166).
' Khawaja Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lahore 725).
' In view of what has been discussed above, these Constitutional petitions have no merit; therefore, the same are dismissed.