1992 PLP 1630 (CLC)

2. The learned counsel for the petitioner contended that the petitioner belongs to the majority Arain Community whereas the respondent belongs to a minority community and did not own any land in the village besides being, involved in a forgery. According to the learned counsel there were

41. Arain families in the revenue estate owning an area of 318 acres whereas the respondent's Kamlana Tribe has two families with an area of 25 acres only. The order of the Commissioner was based solely on the ground that Arain Community was divided and he therefore dismissed the petitioner's appeal without going into the merits of the case. Similar view prevailed with the learned Member, Board of Revenue that since the respondent does not suffer from any ground of ineligibility or that he otherwise is not disqualified for the appointment as Lambardar he dismissed the revision in limine. All the Courts had overlooked the factor that there was no reason to ignore the Arain community. The basic mistake in this case was committed by the AC/Collector who lumped all the communities together against the Arains. The AC/Collector had observed that "it is not binding that candidate belonging to majority communities be appointed to the post" and appointed the respondent from a minority community by ignoring the provisions of rule 17 of the West Pakistan Land Revenue Rules, 1968, thereby causing grave injustice. The learned counsel also placed on record a copy of FIR and Challan in Case No.146‑S & C, dated 18‑11‑1984 under sections 420, 468 and 471, P.P.C. in which the respondent Dost Muhammad was. alongwith others, accused of allegedly preparing bogus conveyance deeds and forging the signatures and stamps of various officials and officers and maintained that Dost Muhammad was not a suitable person to be appointed as a Lambardar in these, circumstances. It was prayed that the revision petition may be accepted.

3. The learned counsel for the respondent contended that the review petition was not maintainable under section 8 of the Board of Revenue Act, 1957 because no new facts or important points of evidence were brought on record. The respondent was owner of land in this village by virtue of conveyance deed dated 12‑2‑1984 and Mutation No.149 dated 14‑3‑1981. The petitioner was owner of 12 Kanals of land only. He was a habitual debtor and also a defaulter. The respondent had become Lambardar on 21‑1‑198‑1. lie was President of the Cooperative Society and a Member of Ushr and Zakat Committee which is indicative of his influence and popularity. Jilts and Rajputs were major community from any point of view and Sials can be considered either Rajputs or Jats. The respondent was acquitted in the criminal case cited in para 2 above and prayed that the revision petition may be dismissed.

4. I have considered the arguments and perused the case record and also the record of the Courts below. It is evident from the memo of the revision petition No.654/86 preferred by, the petitioner before the Board of. Revenue that the main ground taken therein was, that the petitioner was from the majority community whereas the respondent belonging to the minority community was appointed Lambardar. This important factor and also the fact of registration of a case against the respondent under sections 420, 468 and 471, P.P.C. has not received adequate attention from the learned Commissioner. Similarly on 21‑1‑1984, the respondent was not owner of land in the revenue estate and this point was also overlooked by Collector and the Commissioner. Nome of these grounds were adjudicated upon by my learned predecessor in the impugned order and the revision petition was dismissed in limine. This by itself is a sufficient cause for the entertainment of the instant review petition under section 8 of the Board of Revenue Act.

5. It is relevant to reproduce rule 17 of the rules ibid: ??? "

17. Matters to lx 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 headmen in Tehsils situated along the Border." A plain reading of Rule 17 shows that all these requirements are mandatory because of the words `shall' in the opening sentence of the Rule and this prescribed criteria cannot easily be dismissed as appears to have been done in the present case. Arain community is most numerous in this revenue estate with 46 families owning 380 acres of land. Sial Kamlana are only 14 families owning 100 acres. However, there arc also 20 Sial Sabooana owning 1112 acres. Thus the total Sial tribe consists of 34 families and, even if they are given further benefit of being Rajputs, which they occasionally claim to be, their number comes to 40 against 46 Arain owners. Sials are certainly not Jats and they cannot be treated as being Rajputs and Jats at the same time. The Collector committed serious mistake to divide the village in just two tribes i.e. Arain and Non‑Arain thus depriving the majority community of its due right to the appointment of a Lambardar from amongst them. The observation that Arains were divided and therefore Lambardar should be from some other community does not hold the ground as there can be more than one candidate from each Community. There is certainly no embargo in the Rules on the number of candidates from a community. ?????????

6. The other consideration which seems to have weighed with the Commissioner is that "parties are owners of the land as they have been declared eligible for proprietary rights and have paid the whole price of the land". However, the learned Commissioner overlooked the factor that the respondent was not owner of the land on the date of making the order of the appointment of Lambardar on 21‑1‑198.1; the conveyance deed in favour of respondent according to his learned counsel is dated 12‑2‑1984. Therefore the respondent was not land‑owner but a tenant and unless it can be shown that he had deposited the full price of the land in the Treasury before inviting applications for the post he may not be eligible. After his appointment as a Lambardar he was involved in a police case on the report of the D. C/ Collector for forging conveyance deeds anti he was acquitted on 29‑11‑1986 for prosecution's failure to produce the handwriting samples and the original conveyance decd. This point also needs to be thrashed out in depth as it has important bearing on the respondent's suitability for the post.

7. In view of the foregoing, impugned order cannot be sustained and is hereby set aside. The case is remanded to the D.C/Collector for fresh decision in accordance with law and in the light of observations contained in paragraphs Nos.5 and 6 above.

8. There shall be no orders as to the costs, A.A/481/R ????????????????????????????????????????????????????????????????????????????????????????? Review accepted.