1997 SCMR 1115 (PLP)

‑‑‑‑R. 19(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appointment of Lambardar in terms of R.19(2), West Pakistan Land Revenue Rules, 1968‑‑ Petitioner claimed that although matter of appointment of Lambardar .was covered by R.19, West Pakistan Land Revenue Rules, 1968, yet such rule is not mandatory but directory in nature, therefore, Revenue Authorities were not precluded from taking into consideration factors such as proprietary holding and education of contestants for adjudging their suitability for the office and that petitioner being Matriculate and owner of substantial land in estate and belonging to majority community of Jai, which owns approximately 3/4th of the Patti was more suitable than respondent who was absolutely illiterate person, owning lesser holding and belonging to minority community‑‑‑Leave to appeal was granted to examine whether in case covered by R.19(2), West Pakistan Land Revenue Rules, 1968, factors such as proprietary holding, education and influence in the estate of rival contestants for office of Lambardar could be taken into consideration. Ch. Muhammad Ashraf Wahlah, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 25th October, 1995. ZIA MAHMOOD MIRZA, J.‑‑This is a petition for leave to appeal against the judgment of the Lahore High Court, Multan Bench dated 29‑3‑1994 dismissing the petitioner's writ petition directed against the order of the Member, Board of Revenue 'dated 24‑6‑1992 whereby appointment of Elahi Bakhsh respondent as Lambardar was upheld.

2. Facts relevant for the disposal of this petition, briefly stated, are that one Sohanra was a permanent Lambardar of village Wahi Qazi Abul Khair, Tehsil (now district) Lodhran. He transferred his entire land in favour of his sons and became landless with the result that he was removed from the office of Lambardar. Thereafter, the question of appointment of Lambardar was taken up by the authorities and the contest was ultimately confined between Younas, the present petitioner and Elahi Bakhsh, respondent No.2, the eldest son of Sohanra (removed Lambardar). A.C./Collector taking it to be an appointment under Rule 17 of the West Pakistan Land Revenue Rules, 1968, appointed the petitioner as Lambardar vide order dated 31‑7‑1984. On appeal, the Commissioner reversed the order of the Collector and appointed respondent No.2 as Lambardar under Rule 19(2) of the aforesaid Rules. The matter was taken to the Board of Revenue where the learned Member held that the right of primogeniture was not available to the respondent as his father was removed from office. He, therefore, set aside the order of the Commissioner and restored that of the A.C./Collector. Feeling aggrieved, the respondent invoked Constitutional jurisdiction of the High Court. The learned Judge in the High Court quashed the order of the learned Member, Board of Revenue and restored the order passed by the Commissioner. The matter was then brought to this Court by the petitioner in Civil Appeal No.458 of 1987 which appeal was allowed holding that though the order of the Member, Board of Revenue was' without lawful authority, the High Court could not bless the order of the Commissioner with finality as "the selection of the Lambardar is the executive responsibility of the Revenue Officers with the Board of Revenue at the apex." Case was accordingly remanded to the Board of Revenue for fresh decision. This was vide judgment dated 4‑3‑1991.

3. On remand, the learned Member took the view that under the rule of primogeniture, the eldest son of the outgoing Lambardar has to be appointed as a Lambardar. He, therefore, maintained the order of the Commissioner whereby the respondent was appointed as a Lambardar and dismissed the petitioner's revision petition. The petitioner approached the High Court, but remained unsuccessful. The learned Judge upheld the view taken by the Member, Board of Revenue that the case was covered under Rule 19 and, therefore, observed that the appointment of the respondent was not open to any interference.

4. The learned counsel appearing in support of this petition has quite fairly conceded that the matter of appointment of Lambardar in the instant case was covered by Rule 19, but contended that the said rule is not mandatory but is of directory nature. In his submission, the Revenue Authorities are, therefore, not precluded from taking into consideration factors such as the proprietary holding and the education of the contestants for adjudging their suitability: The learned Member, however, proceeded on the assumption that the rule of primogeniture was overriding every other consideration. The learned counsel has pointed out that the petitioner is a Matriculate and an owner of 193 Kanals of land in the estate and also belongs to a majority community of Jat, which owns approximately 3/4 of the Patti while the respondent is an absolutely illiterate person, owns only 22 Kanals, 15 Marlas of land and belongs to a minority community of Arain.

5. Having heard the learned counsel, we are inclined to grant leave to examine whether in a case covered under Rule 19(2) of the above Rules, factors such as proprietary holding, education and the influence in the estate of the rival contestants for the office of Lambardar can be taken into consideration. Leave is accordingly granted. A.A/M‑3255/S Leave granted.