P L 1b 1995 Lahore 512 (PLP)

This petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calling in question the order, dated 12-12-1992 passed in revisional jurisdiction and order, dated 19-4-1994 passed in review petition by the Member, Board of Revenue with a prayer that the same be declared as illegal having been passed without lawful authority, without jurisdiction and of no legal effect.

2. The brief facts of the case which gave rise to this Constitutional petition are; that Rehmat Ali, father of Laskhar Ali, petitioner and Mushtaq Ahmed, respondent No.2, was appointed as Lambardar by the Collector Haveli Project Multan for Chak No.743/.GB, vide his order, dated 12-10-1954. He remained as Lambardar from 12-10-1954 to 11-12-1990, when he breathed his last. On the demise of Rehmat Ali, Lambardar, the office of Lambardar of Chak No.743/GB fell vacant. The District Collector, Toba Tek Singh invited applications for the appointment of Lambardar of the abovesaid estate. In pursuance of the invitation, as many as, seventeen applications were received. Twelve, out of total applicants, withdrew their applications and three of them did not follow the suit. Ultimately the contest for the appointment of the Office of Lambardar remained between the petitioner and respondent No.2 sons of Rehmat Ali. Rehmat Ali had two wives namely Mst. Ghulam Fatima and Mst. Nawab Bibi. Both the contestants are real brothers inter se being the sons of Rehmat Ali, deceased, Lambardar from two wives. Lashkar Ali is stated to be the son of the first wife whereas Mus~haq Ahmed, respondent No.2 is from the second wife.

3. The District Collector vide his order, dated 4-11-1991 appointed Mushtaq Ahmed, respondent No.2, as Lambardar of the abovementioned estate. Lashkar Ali preferred an appeal against the order of the Collector before the Commissioner, Faisalabad. The appeal was accepted vide order, dated 8-6-1992 on the ground that the appointment of the Lambardar was to be made under Rule 19, sub-rule (2) of the West Pakistan Land Revenue Rules, 1968 (hereinafter shall be called the Rules, 1968) and Lashkar Ali was to be appointed as being the elder son of Rehmat Ali, deceased under the rule of primogeniture because the question of succession was involved. Mushtaq Ahmad, being aggrieved, filed a revision petition before the Member, Board of Revenue, Punjab, Lahore. The revision petition was accepted vide order, dated 12-12-1992 passed by the Member, Board of Revenue, observing that since Rehmat Ali remained as a temporary Lambardar till his death, therefore, no question of succession was ever arisen at the death of Rehmat Ali. In this view of the matter no hereditary right could be claimed in this case on the basis of Rule of primogeniture, for Rehmat Ali was never appointed as a permanent Lambardar initially nor he was, thereafter made as a permanent Lambardar of the said estate by any order of the competent Authority. It was first appointment of Lambardar of the said estate. Therefore, Rule 19, sub-rule (2) of the Rules, 1968 could not be made applicable in the instant case. Further observed that the principle of primogeniture could only be made applicable, when there would have been a contest amongst the issues from the same parents. Lashkar Ali, being aggrieved person, filed a review petition against the order, dated 12-12-1992 and the same was dismissed vide order, dated 19-4 1994 passed by the Member, Board of Revenue.

4. Learned counsel for the petitioner contends that Rehmat Ali was permanent Lambardar and remained as such for more than 30 years and after his death the appointment was to be made under Rule 19, sub-rule (2) of the Rules, 1968. Further, contends that rule 17 of the said Rules only deals with the first appointment of the Lambardar and no distinction whatsoever has been made in rule 17 of the said Rules, for the appointment of Larrbardar on the temporary or permanent basis, so the Collector had erred while not considering the RAe of primogeniture at the time of appointment of Musthaq Ahmed, the younger son of Rehmat Ali, deceased, as Lambardar. He did not follow the law as envisaged by rule 19, sub-rule (2) of the Rules, 1968. Maintains that under the Constitution no Court shall have any jurisdiction, save as is or may be conferred on it by the Constitution or by any other law. Vehemently argues that the Courts are bound to follow the law. The learned Member, Board of Revenue has committed an error while not following the relevant law on the subject. The learned counsel for the petitioner supported the orders of the Commissioner on the ground that he had followed the law as envisaged by the Rules, 1968. It is vigorously argued that there is no concept of two wives in English Jurisprudence or American Jurisprudence or under any other law, to make the distinction among the issues of the deceased, born by the different wives, for the purpose of succession. The learned Member, Board of Revenue has wrongly relied upon the definition given in Corpus Juris, Vol. ALIX, 1930 Edition, page 40, C.3 wherein the word "Primogeniture" has been defined as under:-- "Primogeniture.--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 ancestor, is right of his seniority by birth, to the exclusion of younger sons ... " He has also relied upon the "World Book Encyclopaedia" to define the rule of primogeniture as under:-- "Primogeniture, PRY muh JEHN uh chur, is a system of inheritance widely used in Europe for hundreds of years. Under this system the eldest child in a family and often the oldest son has the sole right to inherit land and other possession from the parents. Primogeniture first developed under the feudal system (Se Fedualish). In England and other countries, the oldest child in the royal family became the successor to the throne. The system kept the nobles' large landholdings from being broken up among their children into many small estates. Also preserved the social position and prestige of the noble families. Peasants and other landholders also practised primogeniture. Primogeniture gradually disappeared in Europe except among ruling families, as the feudal system died out. It came to an end in. England in 1925, except for the- royal family. The United States abolished primogeniture by law." He has also relied upon the meaning given in Dictionary of English Law 1959 Edition, page 1403. Stroud's 1986 Edition Dictionary, page 2016, Websters Dictionary page 795.

5. The learned counsel strenuously contends that the Member, Board of Revenue was bound to abide by the law laid down by the Full Bench of Board of Revenue at its apex published in Abdur Rehman v. Nasar Ahmad PLD 1975 Revenue 5 and in view of the dictum laid down in Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC

110. The order of the Member, Board of Revenue was passed without having any lawful authority inasmuch as he had not followed the law laid down in the above-referred authorities. Resultantly, if the Member, Board of Revenue errs to follow the above said authorities, the order shall not stand. Further, contends that in these circumstances at the most, the order passed by the Commissioner was to be set aside by the Member, Board of Revenue and the case was to be remanded to the Collector with the direction that he should decide the matter keeping in view the Rule 19, sub-rule (2) of Rules, 1968. Failure of the Collector to consider the said rule, was rightly pondered upon by the Commissioner, who held that Rule 19, sub-rule (2) was applicable -and Lashkar Ali, as being the eldest son under the law of primogeniture, has a priority right to be appointed as Lambardar to the succession of his deceased father. In this view of the matter, Rule 17 of the Rules, 1968 was not applicable as it was not a fresh appointment. It is anamolous and surprising that Rehmat Ali was appointed in 1954 as temporary Lambardar whereas : is no concept of appointment of temporary Lambardar in the ibid Rules. He in support of his contentions, relied upon Muhammad Nawaz and others v. Muhammad Ikhlaq and others PLD 1993 Revenue

44. Further, contends that when the Commissioner had found that it was a case of an appointment of a Lambardar on the opening of succession of Rehmat Ali, the Member, Board of Revenue should have been remanded the case with the direction to find out as to under what circumstances he was appointed as temporary Lambardar, instead of deciding the case of appointment in the present manner. Further, relies on Noorwar Jan v. Member, B.R. (N.-W.F.P.) PLD 1991 SC 531, Mushtaq Hussain v. Mst. Naseem Akhtar etc. PLD 1982 SC 271, Muhammad Maroof v. Muhammad Ashraf and 2 others 1992 CLC 249, Ghulam Abbas v. The Member, Board of Revenue, Punjab, Lahore and 5 others 1992 SCMR 1977, Muhammad Aslam v. Syed Ahmed Naeem and 9 others PLD 1992 SC 819 and. Haji Abdul Majid v. Member (Revenue), Board of Revenue, Punjab, Lahore and 4 others PLD 1994 Lah. 267.

6. On the other hand, the learned counsel for respondent No.2 contends that the temporary appointment of a Lambardar is envisaged under Rule 21 of the Rules, 1968 and controverted the contentions that there is no concept of appointment of temporary Lambardar. Chak No.743/GB falls under the Evacuee Estate and Rehmat Ali was appointed as Lambardar of the said estate till the decision of the allotment of the evacuee property and thereafter nobody had taken the notice of it and he continued as temporary Lambardar till his death. In this view of the matter, this was a case of fresh appointment on the demise of Rehmat Ali. He further contends that when there was a fresh appointment, no question of applicability of rule of the primogeniture arises. He supports the order, dated 12-12-1992 passed by the Member, Board of Revenue while rebutting the arguments made by the learned counsel for the petitioner that the Full Court decision of the Board of Revenue was binding on the Single Member of the same hierarchy, because proposition as enunciated in the precedent case is absolutely distinguishable from that of the proposition in the case in hand. Emphatically argues that Rule 19, sub-rule (2)(a) is directory in nature and only provides the guideline for the appointment of Lambardar; it does not confer any right rather the appointment of Lambardar is essentially an administrative measure. Reliance has been placed upon Muhammad Shafi v. Member, Board of Revenue, Punjab, Lahore and others 1972 SCMR 253 and Ghulam. Hussain v. Ghulam Muhammad and another 1976 SCMR

75. Lastly argues that the appointment for the Office of Lambardar cannot be claimed as a vested right. In support of his contentions reliance is placed on Abdul Ghafoor v. The Member (Revenue), Board of Revenue and another 1982 SCMR

202. The relevant portion reads as under:-- "The relevant authorities select the persons best suited for the puvpose with 'a view to facilitate the performance of administrative functions entrusted to Lambardar." and unreported judgment rendered by his Lordship Mr. Justice Tanvir Ahmed Khan in Writ Petition bearing No.1389 of 1990. Rehmat Ali was appointed as a temporary Lambardar. He himself could not claim to be appointed as permanent Lambardar as a matter of right. He places reliance on a dictum laid down in Ch. Noor Muhammad v. Muhammad Sharif and others PLD 1966 W.P. (Rev.)

99. Further, relies upon Abdul Salam Rajput v. Muhammad Amir Khan Rajput PLD 1972 Rev. 16, Khushal Khan and others v. Land Management Officer 1985 CLC 2144, Saifur Rehman and others v. Ch. Nazir Ahmad 1986 CLC 843, Nazir Ahmad v. Roshan Din etc. 1987 MLD 2269, Khairuddin and others v. Settlement Commissioner and others 1988 SCMR 988, Ch. Asghar Ali v. Member, Board of Revenue and others 1993 CLC 858, Abdul Karim v. Member, Board of Revenue, Punjab, Lahore and 2 others 1993 MLD 2354, Taj Muhammad v. M.B.R. 1994 CLC 906 and 7Muhammad Younus v. Member (Judicial), Board of Revenue, Punjab and others 1994 MLD 1480.

7. The learned counsel for the petitioner, in rebuttal, candidly conceded that no doubt the fresh appointment of ~a Lambardar cannot be claimed as a vested right but he emphasises that when there is an appointment of the Lambardar to be made on the opening of succession of the deceased Lambardar then it becomes mandatory to decide the matter under the rule of primogeniture.

8. Mr. Farooq Bedar, learned Additional, Advocate-General has placed on record the documents showing that the appointment of Rehmat Ali as a Lambardar in Estate No.743/GB was made by the competent Authority in 1954 on temporary basis. He vehemently argues that the estate was an evacuee property and in those days in such estates the appointments of Lambardars were made temporarily till the decision of the allotment of the evacuee property. He maintains that after the allotment of the evacuee land in the said estate the appointment of Lambardar was to be made by the Collector on the permanent basis but in the case in hand no such order was ever made thereafter and the perusal of the record indicates that the concerned authorities did not take notice of it and the deceased Lambardar also did not ask for it. Further, maintains that the status of Rehmat Ali, Lambardar remained as temporary Lambardar till he breathed his last. In these circumstances, on the demise of Rehmat Ali, the appointment of Lambardar was to be made afresh and the question of opening of successions does not arise so the Rule of primogeniture cannot be claimed by the petitioner in the instant case. The District Collector after considering the merits of the candidates took a decision for appointing a Lambardar of the estate and no error apparent in the orders of the Revenue Authorities is pointed out. He lastly argues that the selection of a Lambardar is the responsibility/prerogative, of the Revenue Authorities which is to be made after taking into consideration all requirements detailed in Rule 17 of the Rules, 1968 other than hereditary claim, which cannot be challenged in the writ jurisdiction; if there is no jurisdictional error in the appointment of Lambardar. 9. 1 have heard the learned counsel for the respective parties at full length and have also given my anxious consideration to the argument advanced by them. I have also examined the original Revenue Record produced by the Tehsildar, Toba Tek Singh to satisfy myself with regard to the status of Rehmat AU, deceased, Lambardar, as to whether he was a temporary or a permanent Lambardar of Chak No.743/GB. There is a copy of Rapt No.64, dated 1-9-1954 of Rozenamcha Waqiati for the year, 1954-55 of Halqa Wahgi, Tehsil Toba Tek Singh, District Lyallpur (now Faisalabad), an extract from which reads as under:-- In the above Case the Appointment of Rehmat Ali as Temporary Lambardar is accepted. This should be upheld till the findal decision of Allotment of Chak Arazi. TRANSLATION

10. The record further reveals that since his appointment till his death, Rehmat Ali neither claimed for the appointment as permanent Lambardar, nor the Government took any notice of it, even after the allotment of evacuee land of the estate to the individuals, so the Collector had* rightly invited application for fresh appointment of Lambardar of Chak No.743/GB, District Toba Tek Singh on permanent basis and on the recommendations of his subordinate revenue staff that Mushtaq Ahmed, respondent No.2 herein possessed with better qualifications appointed him as permanent Lambardar.' Needless to add that the appointment of Rehmat Ali as temporary Lambardar on 12-10-1954 had the statutory backing of Rule*19-A added to the Rules made under the Punjab Land Revenue Act, 1887 on 16-5-1951 vide PLD 1951 Punjab Acts

135. The said rule had also been in the new Rules 1968 as Rule

21. Thus, the appointment of a Lambardar on the death of Rehmat Ali temporary Lambardar was rightly taken by the learned Member, Board of Revenue, to be a case of first appointment under Rule 17 of the Rules. The rule of primogeniture contained in Rule 19(2) of the said Rules was thus not attracted to the case in hand. There is, therefore, no need to decide the question of true meaning and scope of the Rule of primogeniture in this case. The learned Member, Board of Revenue has fully considered the merits and demerits of the candidates while appointing respondent No.2 Mushtaq Ahmed as a permanent Lambardar, in preference to the petitioner, who is a brother of the respondent No.2. No one has a vested right to be appointed as a Lambardar. The authorities in the revenue hierarchy, are the best Judges in making the selection of a suitable person to perform functions of a Lambardar was held in Abdul Ghafoor v. Member, Board of Revenue 1982 SCMR 202 and Ghulam Hussain v. Ghulam Muhammad 1976 SCMR

75. This is a finding of fact arrived at by the learned Member, after proper consideration of the. entire data before him. There is no jurisdictional error in the order impugned herein, so the findings cannot be gone into by this Court in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution, as the same does not suffer from any legal infirmity.

11. Consequently, this petition fails and stands dismissed. There shall be no order as to costs. AA./L-104/1 Petition dismissed Another Rapt No.421, dated 29-6-1956 regarding delivery of Dhalbach to Rehmat Ali, is to the following effect: