P D 1994 Lahore 267 (PLP)

This judgment shall also deal with and dispose of W.P. No.5588 of 1991, both arising out of the order, dated 27‑8‑1989 of the learned Member Board of Revenue, Punjab (Respondent No.l.), appointing Muhammad Yousaf respondent as permanent Lamberdar of Chak No.61/ML, Tehsil and District Bhakkar, and his order dated 11‑2‑1991, whereby he rejected the review petition against the said order.

2. The brief facts, leading up to these Constitutional, petitions, are as under:‑ Abdul Rashid son of Abdul Ghafoor was the permanent Lamberdar of Chak No. 61/ML, Tehsil and District Bhakkar. He resigned his office on 27‑7‑1986. To fill up the vacancy, the Revenue Authorities invited applications. In response whereto 27 candidates jumped in the arena. Out of them, ultimately only 9 candidates, including the petitioners in these writ petitions and the private respondents, remained in the contest. The Assistant Commissioner/Collector, Bhakkar, vide his order, dated 26‑3‑1987 appointed Abbass Ali Shah respondent as the permanent Lamberdar of the village. His appointment was challenged by his five rivals before the learned Commissioner, Sargodha Division, each filing a separate appeal. Vide his order, dated 24‑5‑1987, he set aside the appointment of Abbas Ali Shah respondent and appointed Haji Abdul Majeed (petitioner in W.P. No.2772 of 1991) as the permanent Lamberdar of the village. Aggrieved by his order, his four opponents went up in appeal/revisions before the Board of Revenue, Punjab and the learned Member, Board of Revenue (respondent No.l), vide his order, dated 27‑8‑1989, accepting the appeal of Muhammad Yousaf respondent, set aside the order of the learned Commissioner and appointed him as the permanent Lamberdar. Haji Abdul Majeed writ petitioner, who had been appointed as the permanent Lamberdar. of the village by the Commissioner filed the review petition before the learned Member, Board of Revenue for reviewing his aforesaid order, dated 27‑8‑1989 but he rejected it, vide his order, dated i1‑2‑1991. The review petition filed by Muhammad Din writ petitioner also met the same fate by the same order. Aggrieved by these orders, Haji Abdul Majeed has filed W.P. No.2772 of 1991, while Muhammad Din petitioner has brought W.P. No.5588 of 1991.

3. It may be mentioned here that neither respondent No.l (Member, Board of Revenue), nor Abbas Ali Shah, respondent No.4 and Hassan Muhammad, respondent No.5, turned up despite service and they were proceeded against ex parte. The contest is now between Haji Abdul Majeed, (Petitioner in W.P. No.2772 of 1991) represented by Ch. Muhammad Ashraf Wahla, Advocate; Muhammad Din petitioner (petitioner in W.P. No.5588 of 1991) represented by Ch. Abdul Sadiq, Advocate; and Muhammad Yousuf respondent in both the writ petitions represented by Mr. A. Karim Malik, Advocate. This respondent has filed written statement, wherein he has referred to certain documents, which, according to him, were available on the record of Board of Revenue but were not, referred to by the petitioner in their writ petition purposely. In view of his written statement, Haji Abdul Majeed writ petitioner has filed a rejoinder.

4. At the outset, the learned counsel for Muhammad Yousuf respondent, with reference to the authority known as Abdul Ghafoor v. The Member (Revenue), Board of Revenue and another 1982 SCMR 202, raising a preliminary objection, contended that this Court in the exercise of its constitutional jurisdiction had no authority to interfere with the impugned order passed by the Board of Revenue (Respondent No.l) appointing his client as the permanent Lamberdar of the village, even if it was erroneous, because it was the final authority in the revenue hierarchy and had exclusive jurisdiction in the matter.

5. On the contrary, the learned counsel representing the writ petitioners, relying on a recent authority of the Supreme Court reported as Haji Noorwar Jan v. Senior Member, Board of Revenue, N: W.F.P., Peshawar and 4 others PLD 1991 SC 531 in which two cases of Lamberdari from the Province of Punjab were also dealt with, argued that this Court in the exercise of its writ jurisdiction could lawfully interfere in the matter of selection of Lamberdar by the Revenue Authorities as there was an error of law in the impugned orders passed by the learned Member, Board of Revenue (Respondent No.l) as he being at the appex of the revenue hierarchy was charged with the duty of interpreting the law on the subject correctly, more so for the reason that he was to lay down law for the subordinate Revenue Authorities to follow it as precedent and any error on his part in so doing was tantamount to subverting the rule of law.

6. In the latter authority PLD 1991 SC 531 though the former authority 1982 SCMR 202 was not specifically considered but its ratio dilated upon in certain other. authorities of the. Supreme Court, regarding the non‑intervention of the High Court in the exercise of its Constitutional Jurisdiction in Lamberdari matters, was duly considered and it was held that where there was an error of law apparent on the face of record, the High Court could interfere in those matters and declaring the orders of the Revenue Authorities, including that of Board of Revenue, as against law and without lawful authority, could remand the matter for re-decision in accordance with law. So, respectfully following this dictum, I feel no difficulty in holding that this Court has the jurisdiction to look into the vires of the impugned orders so as to determine as to whether or not they contain any error of law apparent on the face of record. The preliminary objection of the learned counsel for the respondent is, therefore, overruled.

7. Before proceeding to deal with the matters in hand on merits, of course within the parameter laid down in the preceding paragraph. I would like to mention that Abbas Ali Shah respondent, who was appointed as Lamberdar by the Assistant Commissioner/Collector, Bhakkar, goes out of contest according to the joint stand taken by the counsel representing the parties and also for the reason that despite service he has not turned up to support his claim if any for the post of Lamberdar. Same is the position of Hassan Muhammad, who was never appointed as Lamberdar at any stage of the proceedings before the Revenue Officers so the contest essentially remains amongst Haji Abdul Majeed and Muhammad Din writ petitioners and Muhammad Yousuf respondent.

8. It was argued on behalf of Haji Abdul Majeed petitioner that he had better qualifications as compared to Muhammad Yousuf respondent in the sense that he owned more land (220 Kanals) in the estate as compared to his opponent, who owned only 60 kanals and being a Matriculate, had been an employee of Pakistan Air Force and was also free of indebtedness, while his adversary was only primary pass, having rendered no service to the Government and his small holding measuring 60 kanals was under the mortgage charge with A.D.B.P. for a loan‑ of Rs.50,000 besides having misappropriated a sum of Rs.10,000 contributed by the village community for shifting outlet. According to the learned counsel, both the rival candidates were members of Jat community and in that context they had equal qualifications. He contended that the learned Member, Board of Revenue did not agree with the selection of his client as Lamberdar by the Divisional Commissioner only for the reason that he was an absentee, which point had been duly considered by the Commissioner and on the basis of documentary evidence, such as his service discharged certificate issued by the Air Force, National Identity Card, entry in the voters' list, he had rightly come to the conclusion that the petitioner was a bona fide resident of the estate, of which he appointed him Lamberdar. With regard to Muhammad Din petitioner, another rival candidate for the post he maintained that he owned lesser area of land in the estate and had been in litigation with the Government and his claim for the office had rightly been rejected by all the officers in the revenue hierarchy.

9. Learned counsel for Muhammad Din petitioner, supporting the claim of his client, argued that his client was better suited for the office of Lamberdar because he owned 160 kanals of land in the estate while his rival candidates, neither Haji Abdul Majeed petitioner nor Muhammad Yousuf respondent, owned sufficient land in the estate to meet the requirement of Zar‑e‑Bharat and was also Matriculate while Muhammad Yousuf respondent was almost an illiterate. According to him, his client was a social worker and was elected unopposed as Chairman of Masjid Committee of the village. Criticising the findings of. the Revenue Authorities regarding his age, he submitted that he was hardly 60 years old and he could not be termed as an old man arid as such could not be discarded on the ground of his old age. He contended that Haji Abdul Majeed petitioner was a permanent resident of Multan and even carried his business there and was rightly ignored by the Board of Revenue. He supported the contentions of the learned counsel representing Haji Abdul Majeed petitioner that Muhammad Yousuf respondent was under a debt of Rs.50,000 which he had raised as a loan from ADBP by pleading his entire holding in the village and as such he had no property to offer as security to the Government and was also a defaulter in the repayment of loan to the Bank.

10. Learned counsel for Muhammad Yousuf respondent eulogising the qualifications of his client and debunking those of his rivals, vehemently asserted that the learned Member, Board of Revenue was perfectly justified in appointing him (Muhammad Yousuf) as Lamberdar of the village in preference to his opponents because Haji Abdul Majeed petitioner was a permanent resident of Multan where he also carried a business of workshop and being absentee from the estate, he could not be appointed as its Lamberdar. Besides, according to him, he was even otherwise an unfit person for appointment as Lamberdar as he was involved in security proceedings under section 107/151, Cr.P.C.

11. With regard to Muhammad Din petitioner he was, of the view that he was never considered as a fit person by any of the three officers, namely, the Assistant Commissioner/Collector, the Commissioner and the Member, Board of Revenue as he was litigating with the Government on account of his personal greed and could be least interested in watching its interest as Lamberdar.

12. Before proceedings further to consider various contentions raised by the learned counsel representing the parties, I would like to observe that the vacancy of Lamberdar having been caused by the registration of previous Lamberdar, it is a case of first appointment governed by rule 17 of the West Pakistan Land Revenue Rules, 1968. For this kind of appointment of the headman (Lamberdar), regard has to be had to the hereditary claim of the candidate; the extent of his property in the estate; service rendered to, the Government by him or his family; his character, ability and freedom from indebtedness; strength and importance of the community to which he belongs; and his ability to undergo training in civil defence if the village is located in the border tehsil. Neither the qualification concerning hereditory claim, nor the last qualification relating to civil defence training is relevant in this case. Judged in light of other qualifications enumerated above, the land owned by Haji Abdul Majeed petitioner in the estate is much larger in area than the land of Muhammad Din petitioner and Muhammad Yousuf respondent. It has not been denied by the learned counsel for Muhammad Yousuf respondent that his entire holding, which is said to be about 60 kanals, stands mortgaged with the ADBP in lieu of a loan of Rs.50,000 raised by him. Irrespective of the fact whether or not he is defaulter in the repayment of loan, it is obvious that he is not free from indebtedness and his land is not available to the Government as security for the discharge of any future liability. There is nothing on the record to show that he or his family rendered any service to the Government. As regards his education, he is said to be hardly illiterate, having studied up to primary.

13. So far as the claim of Haji Abdul Majeed petitioner is concerned he owns 220 Kanals of land m the estate. He is an ex‑serviceman, being a retired personnel from Pakistan Air Force and as such he has rendered service to the Government. His rival candidates do not possess any such qualification. He is Matriculate and in that context his this qualification is equal to . that of Muhammad Din petitioner but he is certainly better qualified as compared to Muhammad Yousuf respondent, who studied up' to primary. His only disqualifications for which he has been discarded by the learned Member Board of Revenue (respondent No.l), after setting aside the order of the Divisional Commissioner, who had appointed him as a Lamberdar, are that he was an absentee from the village and resided in Multan, where he also carried business and that he was involved in the security proceedings under section 107/151, Cr.P.C. Both these findings have been vehemently disputed by the learned counsel for Haji Abdul Majeed petitioner. According to him, in the first instance the permanent residence of a candidate in the estate is not one of the qualifications or conditions enumerated in rule 17 ibid but if at all it was one of the consideration, then it stood amply proved from the voters' list of the village, identity card, service discharged certificate of his client, and identity card of his son indicating that he and his family permanently resided at Chak No.61/ML, Tehsil and District Bhakkar, of which the Lamberdar is to be appointed and the learned Member, Board of Revenue (respondent No.l) failed to appreciate these pieces of reliable evidence and chose to rely on his so‑called visiting card, indicating the business address of. Multan and unfounded allegations of his having been involved in security proceedings. Muhammad Yousuf respondent had brought on the record of the Revenue Authorities the voters' list of a locality of Multan besides the visiting card indicating the address of Haji Abdul Majid petitioner at Multan. The learned Member, Board of Revenue mainly relied on these documents in coming to the conclusion that Haji Abdul Majeed petitioner was a resident of Multan and an absentee from Chak No.61/ML, Tehsil and District Bhakkar. I think, he failed to appreciate that a person can be resident of more than one place. Haji Abdul Majeed petitioner might be carrying on some business at Multan and may also have some residential property there, but he decidedly owns a big chunk of land in the area of Chak No. 61/ML, Tehsil and District Bhakkar and his service record, besides the identity card, indicate that he is resident of that village. So, ordinarily he could not be discarded on the grounds of being an absentee from or non‑resident of the village. The post of Sarbrah Lamberdar is meant for meeting such like situation and this aspect of the matter was not considered by the learned Member, Board of Revenue at all.

14. As regards the claim of Muhammad Din petitioner, there was concurrent findings of all the three revenue forums that he was an unfit person for the post of Lamberdar because he was unnecessarily litigating with the Government. Explaining this aspect of the matter, the learned counsel representing the rival candidates submitted that Abdul Rashid, Lamberdar, who resigned his post, had transferred the possession of Lamberdari square of land to him (Muhammad Din) and when the Government Agencies demanded the return of possession from him, he filed a suit against the Government and obtained a stay order on the plea that he was entitled to retain its possession, which is Government land, being its lessee for some period. If it was really so, his conduct was certainly objectionable, disentitling him to the office of Lamberdar and all the three revenue forums rightly discarded him.

15. In view of the above, I am of the opinion that the learned Member. Board of Revenue (respondent No.l), while passing the impugned orders, dated 26‑3‑1987, did not correctly apply the law embodied in rule 17 ibid and it was an error of law apparent on the record. Therefore, this Court has the jurisdiction to interfere with his order, dated 27‑8‑1989, as also his order, dated 11‑2‑1991 passed in review petitions wherein he banked more on technicalities than on merits. Consequently, where the writ petition of Haji Abdul Majeed petitioner is accepted and the impugned orders to his extent are declared; against law and without lawful authority and the matter is remanded to respondent No.l for re-decision in accordance with law, the writ petition of Muhammad Din petitioner is dismissed. Parties are left to bear their own, costs. AA./A‑557/L Order accordingly