1991CLC222 (PLP)

III. Five persons appealed to the Commissioner, Multan against this appointment. The Commissioner dismissed these appeals on 28‑2‑1982 and upheld the order of the Collector under which Ghulam Abbas had been appointed Lambardar. IV. Against this order of the Commissioner, two revision petitions were filed before the Board of Revenue by Muhammad Faz21 and Allah Ditta. The revision petition of Allah Ditta was dismissed on 13‑6‑1985. Allah Ditta filed a review petition. Muhammad Fazal's revision petition and Allah Ditta's review petition were heard together. The Board of Revenue accepted both and remanded the case to the Collector to decide afresh vide its decision of 22‑5‑1984. V. Ghulam Abbas went to the High Court in a Writ Petition against the above decision of the Board of Revenue. The High Court on 12‑2‑1985 quashed the order of the Member, Board of Revenue. dated 22‑5‑1985 so far as it related to Allah Ditta. and also modified the observation of the Member, Board of Revenue relating to Muhammad Faral against Ghulam Abbas, but allowed the remand order of the MBR to stand with the direction to hear the parties concerned and decide in accordance with the law, without regard to Member, Board of Revenue's observation. VI. The Collector instead of summoning only Muhammad Fazal and Ghulam Abbas, summoned everybody and appointed Muhammad Ashraf by his order dated 16‑6‑1986. VII. Appeals were made to the Commissioner by Muhammad Ashraf, Ghulam Abbas and Muhammad Maroof. The Commissioner appointed Muhammad Maroof in place of Muhammad Ashraf by his order dated 27‑7‑1987. This is the impugned order. VIII. The present revision petitions have been filed by Muhammad Ashraf, Ghulam Abbas and Muhammad Fazal. The merits of this case will be determined by the following arguments:

1. The decision of the High Court dated 12‑2‑1985 throws out Allah Ditta because there was no ground for review of Member, Board of Revenue's order dated 13‑6‑1982 against him. The High Court quashed the order of the Member, Board of Revenue passed in review petition of Allah Ditta on 22‑5‑1984 whereby this review petition was accepted and the case remanded. In other words, the High Court decided that as regards Allah Ditta the case had been finally decided and closed against him, and the remand order of MBR, dated 22‑5‑1984 could not have any effect in so far as the case of Allah Ditta is concerned. The High Court's decision to let the case be decided afresh by the Collector, therefore could not by any stretch of the imagination be interpreted to mean that Allah Ditta should also be summoned by the Collector; to do so would be to go against the earlier part of the decision of the High Court where that Court had upheld the decision of the Board of Revenue dated 13‑6‑1982 by which the revision petition of Allah Ditta had been dismissed. This establishes a fundamental point, namely that the decision of the High Court did not amount to a free‑for‑all, having clearly and specifically ouster Allah Ditta. The Collector made a grave error in summoning Allah Ditta. The reason why Allah Ditta could not be summoned was that there was a judicial decision against him by a Court of Law which had not been set aside by the High Court, whereas the decision in his favour had been quashed. The principle that emerges clearly from this is that an order of a Court of law which still holds the field against somebody, cannot be ignored and circumvented by an order of remand, unless that order of remand is given where that person is also a party and it operates in his favour. Exactly by the principle by which Allah Ditta has been ousted by the High Court, other persons also against whom a judicial decision stood unchallenged would be ousted from the contest. The above narration of facts clearly shows that, apart from Allah Ditta, Muhammad Fazal, Muhammad Ashraf, Sakhi and Nazar Muhammad also appealed to the Commissioner, who dismissed these appeals on 28‑2‑1982. Against this decision of the Commissioner, only Muhammad Fazal and Allah Ditta went in revision petitions to the Board of Revenue. The result is that Muhammad Ashraf, Sakhi and Nazar Muhammad stand ousted from the contest by virtue of a final decision against them by a Judicial authority which decisions still holds the ground. II. Therefore, the only two persons who can be construed to have been left in the field by the order of the High Court were Muhammad Fazal and Ghulam Abbas. The Collector should only have summoned these two and no other. The error in summoning others was of the same gravity and nature as the error in summoning Allah Ditta. III. It is important here to elaborate that judicial authorities can only decide cases of parties present before them. They cannot act like executive authorities and give directions to invite and consider the positions of parties that are not present before them. This latter is essentially an executive function. The Collector, Commissioner and the Board of Revenue in the present case were acting as Judicial authorities and could only entertain and adjudicate the claims of the parties present. There was a decision of the Commissioner against Muhammad Ashraf in his appeal, which decision had never been challenged by him; therefore, he could not be summoned. Again, Muhammad Ashraf, having not even gone in an appeal against the decision of the Collector, dated 27‑7‑1981 against him, also had a final unchallenged judicial decision against him and could not be summoned again. The principle involved here is that final orders of Courts of Law which have not been challenged and got set aside by a party, cannot be circumvented indirectly through other parties' litigation which results in an order judicial decisions between parties present farcical inasmuch as parties not present would stand to gain or lose through these decisions. IV. As the case now is between Ghulam Abbas and Muhammad Fazal, I do not find it necessary to discuss the merits and demerits of the claims of Muhammad Ashraf and Muhammad Maroof. The decision of the Collector, dated 16‑6‑1986 in summoning and appointing Muhammad Ashraf was wrong, and similarly the decision of the Commissioner, appointing Muhammad Maroof on 27‑7‑1987 was also wrong because of what has been stated above. V. Muhammad Fazal was held to be a non‑resident of the village by the Collector, in his order, dated 16‑6‑1986, and this is confirmed by the Commissioner in the impugned order. In other words a point of fact has been consistently upheld by two lower Courts. VI. The two predecessors‑in‑interest of Ghulam Abbas were Awan by caste and one of them was Ghulam Abbas's grandfather. Thus, in view of this, and in view of the High Court's order to consider all aspects of the case afresh, under Rule 17 of the West Pakistan Land Revenue Rules, 1968, it could not be said that an Awan could not be appointed. VII. Ghulam Abbas has enough land for `zare‑barth', is more educated than Muhammad Fazal and is a man in his thirties whereas Muhammad Fazal is old man of

78. VIII. The impugned order is wrong in ousting Ghulam Abbas because of his being an Awan, as this reasoning is based on MBR's decision dated 22‑5‑1984, which decision itself has been set aside by the High Court as regards its observation concerning caste rights. In the first round, Ghulam Abbas was appointed by the Collector on 27‑7‑1981, and confirmed by the Commissioner on 28‑2‑1982. IX. Since 1930 there have been three Awan Lambardars in the village and there is no reason to reduce their number now. If any other caste has a claim over and above the Awans, they may apply for the creation of a new Lumbardari. In view of the above, I set aside the order of the Commissioner, dated 27‑7‑1987 as well as of the Collector, dated 16‑6‑1986, and accept the revision petition of Ghulam Abbas and appoint him as Lambardar. The revision petitions of Muhammad Ashraf and Muhammad Fazal are hereby rejected. AA./371 Order accordingly.