1989 PLP 2480 (CLC)

Dr. Shaukat Hussain for Petitioner (in R.O.R. No.1989 of 1988). Respondent in person (in R.O.R. No.1989 of 1988). Date of hearing: 25th June, 1989. On the death of Sardar Muhammad Lambardar of Chak No.62/1313, Tehsil Kalurkot, District Bhakkar, fresh applications were invited for the appointment of a new Lambardar. Ten candidates, including the present parties, had contested for the post. D.C/Collector, appointed Muhammad Ismail as the new Lambardar. Ahmad Din and Riaz‑ul‑Hassan preferred two separate appeals before the Commissioner, Sargodha Division, Sargodha challenging therein the appointment of Muhammad Ismail as a Lambardar. Learned Commissioner setting aside the appointment of Muhammad Ismail appointed Ahmad Din as Lambardar and the appeal of Riaz‑ul‑Hassan was dismissed. Hence these petitions.

2. The parties were heard through their counsel. Learned counsel for the petitioner Muhammad Ismail contended that the petitioner belonged to the majority tribe of Gujjar, owned more land than Ahmad Din, that the petitioner was Chairman Usher Zakat Committee since 1979 and that he also had been Member of Union Council for a number of years. He further stated that the Commissioner while ignoring the petitioner had held that the petitioner was not Middle pass but was only Primary pass. Learned counsel stated that there was no difference between Primary and Middle pass for such like appointments. He relied upon PLD 1962 WP Rev. 19 in this regard. He further argued that two candidates withdrew the applications in favour of the petitioner. One of them Ahmad Ali was a cousin of the deceased Lambardar. Learned counsel stressed that the DC/Collector appointed the petitioner after thorough examination of the record, whereas the learned Commissioner had without any justification, set aside the said order of the DC/Collector. Mere fact that the respondent was given Dhal Bachh for one harvest did not create any vested right for appointment as Lambardar. He has also stated that the financial position of Ahmad Din respondent was not sound. The learned counsel further contended that the learned Commissioner had non‑suited the petitioner on the sole consideration that he had not been able to prove from any record that he was related to the deceased Sardar lambardar as his first paternal‑cousin. The learned counsel for the petitioner stated that this finding of the learned Commissioner was totally misconceived and against the factual position. The learned counsel produced certified copies of the pedigree table prepared by the same Patwari on 23‑6‑1988 and another certified copy obtained from the Saddar Office which established the relationship of the petitioner with the deceased as his real paternal cousin. The learned counsel stated that grandfather of the petitioner was Jaman while Mattu was the grandfather of Ahmad Din‑ respondent, that Mattu and Jamman never hailed from a common ancestor, that the respondent Ahmad Din had made a wrong statement when he claimed to be the paternal‑cousin of deceased Lambardar before the Revenue Officer. The learned counsel for Ismail petitioner also stressed that a person who can get a wrong copy of the pedigree table prepared and also use it in support of his false claim was not a person to be entrusted any public office. With regard to Riaz‑ul‑Hassan the other contesting candidate learned counsel stated that he belonged to minority community of Jats and did not reside in the chak. Hence he could not be appointed as Lambardar. The prayer of the petitioner is that the impugned order be set aside and his appointment as Lambardar ordered by the Collector be upheld.

3. Learned counsel for Riaz‑ul‑Hassan petitioner (ROR No.1989/88) stated that Revenue Officer and the Assistant Commissioner had strongly recommended the petitioner but the Courts below without adverting to this fact had thrown away the case of the petitioner. The petitioner was better entitled for the post being more educated (FA.) as compared to the respondents. The family members of the petitioner owned 60 acres of land in the village and that the petitioner was residing in the village. It was further argued that the Commissioner had erred in assuming that the financial position of the petitioner was weak because of the fact that he had pledged his land with ADBP for obtaining loan for the purchase of tractor. He stated that there was no bar to obtaining such loan and that out of Rs.1,10,000 obtained on loan he had paid back Rs.60,000 and the remaining amount would also be paid back in the near future and that the petitioner was acceptable to the majority of Gujjar tribe.

4. Learned counsel for Ahmad Din respondent contended that DC/Collector while rejecting the application of Ahmad Din had wrongly held that he owned 11 acres of land. In fact petitioner owned 15 acres of land and 10 acres were gifted to him by his father and that he also owned 11 acres of land adjoining Chak No.63 DB and thus the petitioner owned 36 acres of land which was more than the land of the petitioner. Muhammad Ismail Ahmad Din also belonged to Gujjar tribe. The learned counsel also stated that the petitioner was Middle pass though he had studied upto Matric that he was better entitled for the post of Lambardar as compared to the respondents and that, therefore, the Commissioner had rightly appointed him as Lambardar. He further argued that being Member Union Council or Chairman Usher Zakat Committee was no qualification for the post of Lambardar and that Muhammad Ismail petitioner contested the election of B.D. in 1987 but was defeated. He has also stated that Riaz‑ul‑Hassan was not on the voters list of the village as he was residing somewhere else and that even otherwise he belonged to a minority tribe and as such would not be fit for the post of Lambardar. The learned counsel further stressed that all the contesting claimants, including Muhammad Ishaq, the real brother of the deceased Lambardar, Muhammad Yaqub son‑in‑law, Manda the son‑in‑law of the deceased Lambardar and Niamat and Abdul Aziz the first cousins of the deceased Lambardar had already waived off their claims in favour of Ahmad Din and that Muhammad Ismail was not paternal‑ cousin of the deceased Lambardar. As such the impugned order was quite appropriate and did not call for any interference.

5. I have carefully considered the arguments of the parties and have examined the record minutely.

6. So far as the case of Riaz‑ul‑Hassan is concerned apart from other factors it is an established fact that he belongs to minority tribe of Jats and would certainly not have the grip over the majority tribe. It has been also held by the Collector as well as the Commissioner that he does not reside permanently in the Chak. His land is also encumbered by heavy loan. Concurrent findings of the two Courts below are also against him. Hence the petition of Riaz‑ul‑Hassan is hereby dismissed being devoid of force. .

7. Now, the tic is between Muhammad Ismail and Ahmad Din. Both belong to Gujjar tribe, Muhammad Ismail petitioner was appointed as Lambardar by the DC/Collector inter alia on the ground that he was the first paternal‑ cousin of the deceased Lambardar and being nearer in decree was eligible for this post. The learned Commissioner had cancelled his appointment saying that Muhammad 1 Ismail was not proved to be the first paternal‑ cousin of the deceased. In this regard the evidence produced clearly establishes that Muhammad Ismail was first paternal‑cousin of the deceased Lambardar. Deceased Lambardar was son of Jaman Jalal Din father of Muhammad Ismail was also son of Jaman. Ahmad Din was not related to the deceased Lambardar. In addition Muhammad Ismail does not suffer from any disqualification. Being Chairman Usher Zakat Committee he is obviously a prominent figure in the estate. His claim to the post of Lambardar was far superior to that of Ahmad Din respondent. Let me also state that hereditary claim is not a marketable commodity in such cases. Thus even if some relations of the deceased Lambardar have waived off their claim this advantage cannot be transferred to Ahmad Din.

8. For the reasons given above I have come to the conclusion that Collector had rightly appointed Muhammad Ismail as Lambardar and that the learned Commissioner had ignored the choice of the Collector with even one good reason. The appointment of Ahmad Din as Lambardar, in the circumstances of this case, was uncalled for. Consequently the revision petition of Muhammad Ismail is accepted, the impugned order dated 6‑8‑1988 is set aside and Collector's order dated 9‑4‑1988 appointing Muhammad Ismail as Lambardar is restored. MA.K./324/R Order accordingly.