1993 PLP 1642 (CLC)

‑‑‑‑R. 19 (2)‑‑‑Appointment of Lambardar in place of deceased Lambardar‑‑ Petitioner being the son of deceased Lambardar was appointed as his successor‑‑‑Board of Revenue on ground of alleged non‑residence of petitioner, disqualified him and appointed respondent as Lambardar‑‑ Validity‑‑‑Collector and the Commissioner both found that petitioner did not suffer from disqualification of non‑residence at the place of his appointment‑‑ Board of Revenue, without adverting to material on record which supported petitioner's residence at the place of his appointment, in a slipshod manner recorded its dissent and assumed the petitioner to be a non‑resident and regarded him disqualified for the appointment of Lambardar on that score‑‑ Petitioner's case was not a case of first appointment, rather the case was one of appointment of a successor and fell within R.19 (2), West Pakistan Land Revenue Rules, 1968‑‑‑Hereditary factor was a predominant factor in the appointment of a successor to the office of Lambardar‑‑‑But for the alleged non‑residence, no other defect. was found with the petitioner to hold the office of Lambardar‑‑‑Non‑residence was denied by the petitioner and he gave proof in support of his claim‑‑‑Board of Revenue did not attend to the proof of residence furnished by petitioner‑‑‑Petitioner was entitled to the consideration of the material placed by him on record to prove his preferential merit for the appointment of Lambardar‑‑‑Board of Revenue's decision was thus, a clear case of misapplication of mind to the totality of facts bearing on the point at issue‑‑‑Result arrived at by the Board of Revenue was not only defective but also unsatisfactory thus, same was not sustainable‑‑‑Case was remanded for reconsideration and decision afresh. Syed Jamshed Ali for Petitioner. Yusuf Farooq for Respondent No.2. Date of hearing: 17th May, 1993. Dispute in the writ petition directed against two orders of learned Member, Board of Revenue pertained to appointment to the office of a Lambardar fallen vacant upon the demise of previous incumbent. Muhammad Hussain was Headman in Chak No.654 of Tehsil Jaranwala, District Faisalabad. He died on 7‑12‑1983. Upon his demise, Collector, Sub‑Division Jaranwala invited applications for filling in the vacancy to the office of Lambardar. In all, six persons applied for the post. Upon comparative assessment of their merit, Collector appointed petitioner as Lambardar in place of his deceased father, on 10‑9‑1984. Two appeals were filed against the appointment of the petitioner before Commissioner, Faisalabad Division. One appeal was filed by Noor Ahmad and the other by Ghulam Muhammad, respondent No.2. Both the appeals were dismissed on 14‑4‑1985, and the appointment of the petitioner was upheld by the Commissioner of the Division. Thereupon, respondent No.2 preferred a revision before Board of Revenue. It was allowed, on 16‑1‑1990, by a learned Member, Board of Revenue on ground of non‑residence of the petitioner in Chak No.654 and in his place, respondent No.2 was given the appointment of Lambardar. Petitioner applied for review of the above order. Review petition failed on 8‑6‑1992. Soon thereafter, a petition in Constitutional jurisdiction was filed in this Court for setting aside of the above two orders of the learned Member, Board of Revenue. It was admitted to hearing on 5‑8‑1992 and has been heard today on merits. Sole ground for bypassing the rule of primogeniture was non -residence of the petitioner in Chak No.654. Muhammad Hussain held agricultural land and residential property in Chak No. 654, and, Hujra Shah Muqeem in Faisalabad. He resided at both the places and looked after his land and property. Petitioner was his eldest son. He was elected member of Union Council, Behlolpur in District Faisalabad. He resigned from the membership of Union Council, on 28‑8‑1984 and shifted his residence to Chak No.

654. His resignation and consequent transfer of residence took place after the death of his father and before the order for his appointment as Lambardar. The Collector and the Commissioner both found that the petitioner did not suffer from disqualification of non‑residence from Chak No.654. A specific objection raised on the above score by respondent No.2 and others was turned down. There was some material to support residence of the petitioner in Chak No.654. Learned Member, Board of Revenue without adverting to it in a slipshod manner recorded his dissent and assumed the petitioner to be a non resident of Chak No.654 and held him disqualified for the appointment of Lamabardar on this score. A chance for correcting the error in review was also lost by the learned Member, Board of Revenue. It was not a case of first appointment. Rather, it was a case of appointment of a successor and fell within sub‑rule (2) of Rule 19 of Punjab Land Revenue Rules, 1968. Except for a disability provided in clause (c) of sub‑rule (2) hereditary factor was a pre dominant consideration in the appointment of a successor to the office of Lambardar. But for the alleged non‑residence, no other defect was found with the petitioner to hold the office of Lambardar. Non‑residence was denied by the petitioner and he gave some proof of it also. A Lambardari grant of 12‑1/2 acres of irrigated land was attached with the office of Larrbardar. Obviously, it was a remunerative office. Deceased Lambardar held the office for about 25 years and at no time, his non‑residence from Chak No.654 was ever found fatal to the performance of his duties attached to the office of Lambardar. Learned counsel for respondent No.2 informed the Court that a substitute was appointed for the office of Lambardar who performed the functions on his behalf. If this was so, similar arrangement could have been made in case of petitioner and there was no good reason for overlooking it in case of a successor. However, the petitioner firmly asserted his residence in Chak No.654, since after the death of his father. As said above, learned Member, Board of Revenue did not attend to the proof furnished by him in this behalf and in a superficial manner found the disqualification to exist against the petitioner. The petitioner was entitled to the consideration of the material placed by him on record to prove his preferential merit for the appointment of a Lambardar. Without its assessment on judicial plane, learned Member, Board of Revenue rejected the candidature of the petitioner. In my opinion, it was a clear case of misapplication of mind to the totality of facts bearing on the point at issue. Result arrived at was not only defective but unsatisfactory also. Therefore, it was not sustainable. In the context, matter required consideration afresh in the light of relevant rules and the material on record touching the question of residence of the petitioner in Chak No.654. 1 would, therefore, accept the petition, set aside orders passed on 16‑1‑1990 and 8‑6‑1992 by the learned Member, Board of Revenue, and, direct reconsideration and decision afresh of revision R.O.R. No. 1493 of 1985 filed by respondent No.2. Costs to be borne as incurred. Parties have been directed to appear before learned Member (Revenue), Board of Revenue, Punjab, Lahore on 19‑6‑1993. AA./Q‑12/L Case remanded.