1994 PLP 1480 (MLD)

In this Constitutional petition Muhammad Younas has assailed the vires of the order of the learned Member, Board of Revenue passed on the 24th of June, 1992, whereby he .dismissed the revision petition of the petitioner and kept intact the order, dated the 3rd of March, 1986 of the Commissioner, Multan Division, whereby Elahi Bakhsh respondent was appointed as Lambardar under Rule 19(2) of the West Pakistan Land Revenue Rules, 1968 (hereinafter referred as the Rules).

2. One Sohanra was the permanent Lambardar of Village Wahi Oazi Abdul Kahir then Tehsil Lodhran (now District Lodhran). He transferred his entire land in favour of his sons. One of his beneficiaries is his eldest son Elahi Bakhsh respondent. Since Sohanra became landless, the District Collector on the reports of his revenue staff, passed the order on the 11th of October, 1982, whereby Sohanra was removed from the office of Lambardar which gave rise to long duel between the petitioner and the said respondent. The case went through steeplechase of orders, appeals, remands at different tiers of revenue hierarchy. The case ultimately was taken to the Supreme Court which vide its judgment, dated 4th of March, 1991 Set aside the order of the High Court passed in writ petition and remanded the case to the Board of Revenue for decision afresh.

3. Initially the Collector, Lodhran took it to be an appointment under Rule 17 of the Rules and picked up the petitioner as best of the candidates for the office of Lambardar. The Commissioner thought otherwise and appointed the respondent as Lambardar on the principle of primogeniture as recognised in Rule 19(2) of the Rules. The learned Member, Board of Revenue in its order, dated the 27th of October, 1986 disagreed with the view and restored the order of the Collector. This was challenged in Constitutional petition under Article

199. The learned Judge of this Court reversed the order of the learned Member, Board of Revenue and restored the order of the Commissioner. This order too was challenged in the Supreme Court which adversely commented upon the orders of the learned Member, Board of Revenue in paragraph 17 of the judgment in the following words:-- "A broad proposition of law has been laid down by the learned Member, Board of Revenue in his impugned order and it is that "no rights of primogeniture would be available to the respondent since his father was removed from the office". It goes on to say that it has been his consistent practice. Such a broad proposition, as was laid down by the learned Member, Board of Revenue for a precedent for his subordinates makes non-existent and irrelevant the formal rules contained in clause (b) of sub-rule (2) of Rule 19 of the Land Revenue Rules. It amounts to rewriting the rule. Confronted with this conflict between the formally framed rules and the judgment of the Member, Board of Revenue in individual cases, completely negating it; the subordinates in the hierarchy would be totally confused. In this case also the error is of law and is apparent on the face of record."

4. While the Supreme Court had denounced the said order being violative of Rule 19 of the Rules,. however, approved the interference of the High Court only to a limited extent, observing:-- 'The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law of applying it to individual cases coming up before it and laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the Constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law." The Supreme Court, however, further maintained it that High Court had blessed with finality the order of the Commissioner which it could not. And so because:-- "As pointed out, the selection of the Lambardar is the executive responsibility of the Revenue Officers with the Board of Revenue at the apex. After the error of law in the judgment of the Member, Board of Revenue has been corrected, it will be for the Board of Revenue to decide afresh the revisions brought before it in accordance with the law."

5. In this case the dispute, in essence is whether appointment of Lambardar would be governed by Rule 17 or 19 of the Rules. The question excited attention of the Supreme Court in various cases where besides determining applicability of the said Rules in each case, the question of powers of the Revenue Authorities in the scenario of interference in Constitutional jurisdiction was also examined. Here following observation of the Supreme Court from Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 may be quoted with profit:-- . "On its proper construction far from conferring any right much less a legal right, the rule at best is directory which provides a guideline for the choice of the successor Lambardar, the whole object being to appoint a person in the opinion of the appointing authority the most fit person from among eligibles under Rules. It would be wrong to impart greater efficacy to the above rule. Moreover, fitness cannot be judged by any objective standard: it is primarily a subjective process, in which the opinion of the appointing authority is the crucial factor. Even on general principles, the appointment rests in the discretion of the graded hierarchy of Revenue Officers created by the West Pakistan Land Revenue Act, who because of their experience and training are better qualified to make the choice than the Courts of general jurisdiction. In such cases, the matter is not to be approached as if it were a dispute relating to property or franchise. Therefore, the High Court rightly refused to interfere."

6. The Supreme Court, however, had made it clear that administrative discretion and the power of the Revenue Authorities, however, does not extend to empower them to re-write the law of their own choice. For instance Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14 are the cases where amplitude of discretionary and administrative powers had been put under a restraint by and large indicated by the requirement of the rule of law.

7. The pith and substance of the Supreme Court rulings is that any error apparent in the orders of the Revenue Authorities can be corrected in the Constitutional jurisdiction but the High Court cannot substitute its view on question of fact in place of the opinion of the Revenue Officers with the Board of Revenue at the apex because ultimately the selection of Lambardar is their executive responsibility. In the instant case after the remand by the Supreme Court, the learned Member, Board of Revenue upheld the order, dated the 3rd of March, 1986 of the commissioner, whereby the respondent was appointed on the principle 'of primogeniture as contained in Rule 19 of the Rules. The learned Member, Board of Revenue though over emphasised the rule of primogeniture but he had also taken into consideration the fact that the respondent did not suffer from any disqualification as was also earlier opined by the Commissioner.

8. It is true that in terms of rule 19(2)(a) ibid, the nearest eligible heir of the deceased Lambardar, according to the rule of primogeniture, has to be appointed in the vacant post, but this rule is to be read in conjunction with g clauses "C" and "D", notwithstanding the established claim of a person as an heir, the Collector may yet refuse to appoint him as a Lambardar on any ground which would necessitate his dismissal from the office of Lambardar.

9. The respondent admittedly did not earn any disqualification mentioned in clauses "C" and "D" of Rule 19(2) nor the petitioner so asserted before the learned Member, Board of Revenue or this Court. In circumstance of the case the learned Member, Board of Revenue had not made errorful approach while resolving the question under Rule 19 of the Rules. Rule 17 did not apply as it was not a case of fresh appointment. The father of the respondent was deprived of the office of Lambardar because he had gifted away his entire land to his eldest son the respondent and other sons. The appointment in question was made in accordance with law and the impugned order does not suffer from any legal infirmity to warrant interference in this Constitutional petition.

10. Before parting with the judgment I cannot resist saying that rule of primogeniture as provided in Rule 19 of the West Pakistan Land Revenue Rules, 1968 is repugnant to the injunctions of Islam as enshrined in the Holy Qur'an. Hereditary claim to an office is not in consonance with injunctions of Qur an and Sunnah. The appointment of Lambardar, like all other appointments to an office must be made on merits. The best among the., candidates should be the pick. The Holy Qur'an provides in Verse 13 of Surah A1 Hujaraat:-- "Surely the noblest of you with Allah is the most dutiful of you." The superiority of one over another in this vast brotherhood does not depend on nationality, wealth or rank but on the careful observance of duty or moral greatness. Thus a person who normally discharges obligations and duties of man and Allah, stands on better footing than those who are not endowed with these qualities. Better education is the other consideration which makes a person superior to the less educated. Verses 32 and 33 of Surah Al Baqarah recite how superiority of Adam was established over angels on account of his more knowledge. The angels were not gifted with the knowledge which was given to man, and the gift of knowledge was a greater gift of God. Islam had first propounded the theory of survival of the fittest in the following words in Verse 17 of Surah `Al Raad":-- "Then as for the scum, it passes away as a worthless thing, and as for that which does good to men, it tarries in the earth. Thus does Allah set forth parables."

11. In short while picking up any person for the office, the determinative factors should be the strength of character, education and knowledge engagement in nation building activities, capacity to discharge of rights and obligations towards his fellow beings etc. All the persons do not possess equal qualities. Qur an says:-- "The bad and good are not equal." (Verse 100 of Surah Al Maida). And then in Surah `Al Raad':-- "Are the blind and seeing alike or the darkness and light equal." The best among the available, therefore, has to be chosen for incumbent of any public office. Hereditary claim or principle of primogeniture' is completely alien to the Qur'anic injunctions and was not followed by the Holy Prophet while nominating his successor and nor the Sheikhain (Hazrat Abu Bakar and Hazrat Umar) or Hazrat Umar or Hazar Usman had picked up their eldest sons or other sons for the office. Hazrat Imam Hassan was also not nominated by Hazrat Ali but was elected by the people. And when Amir Muavia nominated his son for the exhalted office, the move was resisted by those who had imbibed the spirit of Islam.

12. It is pertinent to point out that clauses (1) (a), (1)(b) and (1)(c) of Article 199 contemplate initiation of the writ jurisdiction of a High Court only upon an application and Article 175(2) of the Constitution restrains the High Courts from assuming jurisdiction in any other manner. It is for the Federal Shariat Court to examine and decide the question whether principle of primogeniture as contained in the aforementioned rules is repugnant to the injunctions of Islam, as laid down in the Holy Qur'an and Sunnah, under Article 203-D of the Constitution. Article 203-G of the Constitution bars jurisdiction of this Court to exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court. It is high time the Provincial Government effect change/modification in the said rules or the material brought before the Federal Shariat Court.

13. In view of what stated above, the writ petition is dismissed leaving the parties to bear their own costs. AA./M-1586/L Petition dismissed.