1993 PLP 858 (CLC)

3. Learned Member, Board of Revenue relying upon (PLD 1982 SC 271) "Mushtaq Hussain v.,Mst.Naseem Akhtar etc.", held that there is no bar for the appointment of a female as Lambardar provided she is full owner. According to impugned order Mst. Sharifan Bibi is the eldest daughter of Abadan Lambardar deceased arid was rightly appointed by the District Collector, Vehari on 20‑8‑1990 and the choice exercised by this Officer should not have been interfered by the Commissioner, Multan as the lady is satisfactorily working as Lambardar since her appointment on 20‑8‑1990. It was further observed that the Commissioner has erred in law in considering the case under rule 17 of the Land Revenue Rules while this was a case under rule 19(2) of the said Rules. It is stated that the case of Mst. Sharifan Bibi is fully covered by the rule of primogeniture. It is observed that respondent No.4 is the permanent resident of Chak in question as is proved from the evidence discussed to the impugned order. . It is further stated that respondent No.4 has special features and reasons for appointment, having owned an area of 102 Kanals 9 Marlas in the Chak which is more than the ownership of any other candidate for this vacancy. It is emphasized that she is a Hafiz‑i‑Quran which is a rare and special consideration and must prevail in the present Islamic set‑up. "Mussarat Uzma Usmani and another v. Government of Punjab through Secretary, Health, Lahore and another" (PLD 1987 Lahore 178) is cited to show that there should be no discrimination on the basis of sex alone. Facts were also taken note of that father of respondent No.4 was appointed as permanent Lambardar on 27‑11‑1957 by the Collector MultaA against the vacancy of Sher Singh Lambardar and a reference to this effect is made in the Register Dakhal Kharaj for the Lambardars. As to the case of the present petitioner, it is observed that he is not a permanent resident of this Chak and ample proof has been provided that he is practising in Balochistan High Court, Quetta. A reference to the application dated 23‑3‑1990 to the Chief Minister, Punjab, by the petitioner, is made to prove the petitioner as a practising lawyer at Quetta. It is further stated that President of the Bar Association, Quetta has confirmed to his counterpart in Vehari that he is practising member of the Bar at Quetta. On these considerations, the case of the petitioner was ruled out.

4. Learned counsel relies upon a certificate dated 16‑11‑1992 issued by the Secretary Balochistan Bar Council Quetta to show that petitioner is resident of Chak No.180/EB, Tehsil and District Vehari. However, it is clear in the certificate that name of petitioner exists on the roll of Advocates maintained by Balochistan Bar Council. There is another certificate dated 25‑11‑1992 by the President District Bar Association, Veharr to the effect that Identity Card was issued in favour of petitioner on 2‑3‑1974 and that he had been practising as an outstation Advocate in District Vehari before 1‑9‑1991 on which date he got himself enrolled as a regular voter member of District Bar Association, Vehari and still continues to be a member of the said Bar. Other documents have been submitted with the writ petition to show that the petitioner is resident of the Chak in question.

5. In view of above first and foremost question arises as to the claim of the petitioner vis‑a‑vis Mst. Sharifan Bibi respondent No.4 appointed a." Lambardar by the District Collector as well as by Member Board of Revenue, Lahore. The evidence produced before the Revenue Authorities and before this Court is not enough to show that the petitioner is permanent resident of the Chak in question. On the other hand from his own two certificates, referred to above, it is evident that he is a practising Advocate and his name still exists in the Bar Council list at Quetta. However, this is not the only question to be considered while appointing permanent Lambardar.

6. It has been held by the Member, Board of Revenue that it is a case of succession and that under rule 19(2), respondent No.4 is entitled to the vacancy of Lambardar on the basis of rule of primogeniture and it is further stated on the basis of PLD 1982 SC 271 that a lady can be appointed as Lambardar provided she is full owner of the estate and this condition is fulfilled in the present case she being the owner of 102 Kanals of land. The order of the Commissioner was set aside on the ground that he committed jurisdictional error in considering the case under rule 17 and. not under rule 19(2) of the aforementioned rules.

7. It has been held in (PLD 1991 SC 531) "Haji Noorwar Jan v. Senior Member, Board of Revenue, N.‑W.F.P, Peshawar and 4 others" that there are number of decisions where it has been held that the appointment of Lambardar is purely an administrative function, that no particular person has a vested right to be appointed as a Lambardar, that the selection cannot be made by the Courts 'in exercise of their Constitutional jurisdiction nor can the discharge of such administrative duties be hampered or impeded by Courts' intervention. Reliance was placed on "Abdul Waheed v. The Member, Board of Revenue, Punjab. Lahore and another" (1971 SCMR 719), "Muhammad Shaft v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (1972 SCMR 253), "Muhammad Waryam v. Member, Board of Revenue Punjab Lahore and 3 others" (1972 SCMR 354), "Ghulam Hussain v. Ghulam Muhammad and another" (1976 SCMR 75) and "Sharaf Din v. Qazi Abdul Jalil and another" (1986 SCMR 1368). It is further held in the precedent case that the selection of Lambardar is the executive responsibility of the Revenue Officers with the Board of Revenue at the apex. It is also decided in para. 19 of the judgment that the Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law, 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.

8. Learned counsel for the petitioner vehemently contends that according to rule of "primogeniture" a female cannot be appointed as Lambardar. In support of this he has placed reliance on the Encyclopedia Britannica, page 213 which defines this term "to signify the preference in inheritance that is given by law, custom, or usage to the eldest son and his issue (primogeniture)." According to learned counsel this term is defined in the Universal Dictionary of the. English Language at page 911 as "system whereby the eldest son, or his eldest son or descendant in direct line succeeds to a father or ancestor in real estate; system by which the whole of an estate real estate passes to eldest son". Reliance is also placed on the definition of term in Black's Law Dictionary at page 1066 as the first born child or (male primogeniture) son". On this basis learned counsel vehemently contends that respondent No.4, being a female, is not entitled to the appointment of Lambardar and as such renders herself disqualified for this office.

9. There is no force in the contention of learned counsel as in all the three definitions word "primogeniture" has to be viewed in case of inheritance. The appointment of Lambardar, in this case, has to be seen with reference to the relevant rule 19(2)(a) of West Pakistan Land Revenue Rules, 1968 which is reproduced as under:‑‑ "In an estate or sub‑division thereof, owned chiefly or altogether by Government. a successor to the office of headman shall be selected with due regard to all the considerations, other than hereditary claims, stated in Rule 17: Provided that in such an estate or sub‑division thereof, notified for the purpose by the Board of Revenue, the selection shall, as far as possible, be made in the manner prescribed by sub‑rule (2) if a suitable heir is forthcoming. (2) In other estates, the nearest eligible heir, according to the rules of primogeniture shall be appointed unless some special custom of succession to the office be distinctly proved but subject, in every case, to the following provision:‑‑ (a) The claim of collateral of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant, in the male line, of the paternal great grandfather of the last incumbent." In the present case respondent No.4 has been appointed as Lambardar in place of her father and, therefore, the aforementioned rule is applicable and case of respondent No.4 falls in first part of sub‑rule (2) of rule 19 which particularly states that "In other estates, the nearest eligible heir, according to the rules of primogeniture, shall be appointed." The aforementioned dictionary meaning, therefore, is inapplicable when there are relevant rules which do not lay down that a male must be appointed as Lambardar. Even if the plea of learned counsel is accepted, the son of deceased can come forward and contest the claim of her sister and as there is no son, there is no illegality of any kind in the appointment of respondent No.4 as Lambardar. The petitioner, under no circumstances, can compete and neither definition in the dictionary as explained by the learned counsel, is helpful to the petitioner; particularly when it is laid down by the Supreme Court that a female can also be appointed as Lambardar.

10. The term "primogeniture" is also defined in the New Lexicon Webster's Dictionary of the English Language Encyclopaedic Edition as "the state or fact of being the first born of parents, this fact as conferring the right to inherit in the event of intestacy". According to this dictionary meaning it is first born of the parents who is entitled to be considered in the case of inheritance, it may be male or fern 11. 1 have gone through all the orders passed by the lower Courts and do not find any jurisdictional error in the impugned order of the Member, Board of Revenue warranting interference in the appointment of respondent No.4 as Lambardar in place of her father; particularly when she is working satisfactorily since 1990, such an appointment has been made neither to contravention of any law nor rule as held above in PLD 1991 SC

531. The Board of Revenue exercised its jurisdiction strictly in accordance with law on the facts and circumstances of the case. In this view of the matter comparing the case of petitioner with that of respondent No.4, I find that impugned order passed by the Member. Board of Revenue is unexceptionable.

12. For the foregoing reasons the writ petition is dismissed in limhe, AA./A‑333/L Petition d4nissed.