2006 PLP 258 (CLC)

MAULVI ANWARUL HAQ, J.

On the death of the permanent Lumberdar of Chak No.150/EB, Tehsil Burewala, District Vehari, the file for appointment of a new Lumberdar was opened. The petitioner and respondents Nos.4 and 5 filed applications, but respondents Nos.4 and 5 withdrew in his favour. The proceedings were completed and the file was sent up to the D.O.(R), Vehari with the recommendation that the petitioner be appointed as a permanent Lumberdar. The D.O.(R), Vehari conducted his proceedings and vide order, dated 18-4-2002 appointed the petitioner as a permanent Lumberdar. Against this order, respondent No.3 filed an appeal which was heard by the E.D.O.(R), Vehari, who allowed the same on 5-8-2002 and remanded the case back to the D.O.(R) for afresh decision after holding that the petitioner is not competent to be appointed as Lumberdar being a convict in a murder case. A revision filed by the petitioner has been dismissed by respondent No. 1 on 30-11-2002.

2. Learned counsel for the petitioner argues with reference to Rule 18 of the Land Revenue Rules, 1968 that it is only a sentence upon conviction in an offence involving moral turpitude, which leads to dismissal of a Lumberdar. He also draws my attention to the judgment of a Division Bench of this Court in Criminal Appeal No.35 of 1982 whereby the conviction and sentence of the petitioner under section 302, P.P.C. was set aside and he was convicted under section 307, P.P.C. and sentenced to undergo seven years' R.I. with direction to pay a fine of Rs.250 or in default of payment thereof to further undergo S.I. for 15 days.

3. Learned counsel for the respondent No.3 finds himself unable to answer the said contention but insists that since the application of his client was not considered, the remand order cannot be interfered with in the writ petition.

4. Learned counsel for the petitioner rejoins to state that no application was filed within the time fixed by the D.D.O.(R) and it was only upon completion of proceedings when the case was fixed for orders of Collector that the application was filed.

5. I have gone through the file of this case. Now, the E.D.O.(R) proceeded to dismiss the petitioner or to set aside the appointment on the ground that he was convicted under section 302, P.P.C. Now Rule 18(1)(a) of the said Rules laid down that it is only when a Lumberdar has been convicted and sentenced for an offence involving moral turpitude that it is to be termed as a disqualification resulting in his dismissal. Now, the said judgment in Criminal Appeal No.35 of 1982 discloses that their Lordships set aside the conviction and sentence of the petitioner under section 302, P.P.C. and convicted and sentenced him under section 307, P.P.C. as stated above by the learned counsel for the petitioner. I also find that no moral turpitude was involved as it was a fight between two groups of persons and without any previous enmity whatsoever.

6. Now going to the said contention of Mian Arshad Lateef, learned counsel for respondent No.3, I find that the proceedings commenced and 2-3-2001 was the last date for filing the application. The proceedings were conducted by the D.D.O.(R) and he prepared his report on 14-12-2001, which was sent up to D.O.(R) on 27-12-2001. Now, respondent No.3 filed the application on 28-2-2002. The order of appointment was passed on 18-4-2002. Now, I find that the only objection raised by the respondent No.3 was that the petitioner is not a fit person and that he is better person because the petitioner stands convicted as alleged by him. There is no allegation that he owns more land than the petitioner or that he has better educational qualification and has some other distinction to place him at a higher pedestal than the petitioner for the said job. This being so, I am not inclined to uphold the remand of the case. The writ petition is accordingly allowed. The impugned orders dated 30-11-2002 and 8-5-2002 of respondents Nos.1 and 2, respectively are declared to be without lawful authority and are accordingly set aside. No order as to costs. F.M./M-1381/L?????????????????????????????????????????????????????????????????????????????????? Petition allowed.