2007 PLP 287 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

It may well be true that the proximity of relationship with a late Lumberdar may not be the only factor in determining the successor Lumberdar but then it is also equally true that the said was one of the proper and valid considerations for determining such a successor. It was in these circumstances that the District Collector had tilted in favour of Rafique petitioner who was a nephew and son-in-law of the late Lumberdar and had consequently directed his appointment as such. The Commissioner, however, on an appeal filed before him, set aside the said appointment of Rafique petitioner and instead appointed Nazir as the Lumberdar. The Board of Revenue re-examined the entire matter; concurred with the selection of the Lumberdar as made by the District Collector and consequently set aside the order passed to the contrary by the Commissioner and restored the appointment of Rafiq petitioner.

2. Nazir respondent impugned the said selection before the learned High Court through a petition filed under Article 199 of the Constitution. Although the learned Judge in Chamber was conscious of the law declared by this Court in Ghulam Hussain's case 1976 SCMR 75 which was reproduced by his Lordship in the impugned judgment and which had clearly laid down that the appointment of a Lumberdar vested in the discretion of the graded hierarchy of the Revenue Officer created by the \Vest Pakistan Land Revenue Act who, because of their training, were better qualified to make the choice as against a Court of general jurisdiction yet elected to interfere with the selection of the Revenue hierarchy in the matter and after setting aside the said selection declared Nazir respondent as the successful Lumberdar.

3. We have heard the learned Advocate Supreme Court for Rafique petitioner at some length as also the learned Advocate Supreme Court for the respondents and have also examined the record in the light of the submissions made before us.

4. There was nothing on record which could be pointed out to indicate any reason which could have disqualified Rafique petitioner from his appointment as a Lumberdar. Nor could be constitutional A jurisdiction of the High Court be even used to substitute its own preferences with the preferences of the competent fora unless it could be shown that the decision made by the competent authorities suffered from any jurisdictional defect or any illegality. It could not be said that the Board of Revenue did not have the jurisdiction to pass the order that it had passed nor could it be said that the discretion exercised by the Board of Revenue in concurring with the selection of the Lumberdar as done by the District Collector was based on any reasons or considerations which were illegal or extraneous to law. In the circumstances, no reason existed which could have authorized the learned High Court to declare the order, passed by the Board of Revenue, as being without jurisdiction or having been passed without lawful authority. Needless to add that the learned High Court while exercising powers vesting in it under Article 199 of the Constitution does not sit in appeal over the decisions or judgments questioned through the said jurisdiction.

5. Having thus, examined all aspects of the matter, we find that Nazir respondent might well have been a better choice in the eyes of the learned 'High Court but the said could not have been the reason permitting the learned ,High Court to' declare a decision of the Board of Revenue to be illegal unless it could not have been found that the choice B made by the District Collector and the Board of Revenue proceeded on illegal or invalid considerations which had not been so found by the learned High Court. In this view of the matter, the jurisdiction exercised by the learned High Court in setting aside the impugned decision of the Board of Revenue could not be sustained.

6. Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment of the Lahore High Court dated 23-4-2001 passed in Writ Petition No.10684 of 2000 is set aside and as a further result whereof the impugned order of the Board of Revenue dated 28-6-2000 is restored. No orders as to costs. M.H/M-198/SC?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.