2011 PLP 1183 (YLR)

CH. MUHAMMAD TARIQ, J.

This writ petition has been directed against order dated 20-3-2010 passed by respondent No.1.

2. Brief facts of the case as narrated in the writ petition are that Abdul Mannan was Lamberdar of Chak No.1/1-L, Tehsil Renala Khurd, District Okara, who died on 20-10-2004 and the post of Lamberdar fell vacant. The Revenue field staff invited applications for appointment of Lamberdar. Tehsildar Renala Khurd after observing necessary formalities recommended the petitioner for the post of Lamberdar and on the recommendation of Tehsildar, District Officer (Revenue), Okara, vide order dated 2-3-2006 appointed the petitioner as Lamberdar.

3. That against order of District Officer (Revenue), Okara, respondent No.4 tiled an appeal before Executive District Officer (Revenue), Okara, who accepted the appeal and appointed respondent No.4 as Lamberdar of the Chak.

4. Feeling aggrieved the petitioner filed R.O.R. No.16 of 2007 before the Member Board of Revenue, Punjab, Lahore, which met the same fate and learned Member Board of Revenue dismissed the R.O,R., hence this writ petition.

5. Learned counsel for the petitioner contends that on the death of deceased Lamberdar the applicant/respondent No.4 was minor but this aspect was never considered by the forums below. He further contends that the respondent No.4 was minor and a minor cannot be appointed as Lamberdar, but this fact was ignored by the learned lower forums. Therefore, writ petition be accepted, impugned order be set aside and the petitioner be appointed as Lamberdar, who is eligible for the post.

6. Conversely, learned counsel for the respondent No.4 has vehemently opposed this writ petition and has prayed that respondent No.4 is well educated and eligible for the post who is from-the family of Lamberdar and also qualifies on the ground of heredity claim. The respondent No.4 owns sufficient land in the revenue estate. He is previous non-convict and enjoy influence and good reputation in the area.

7. Arguments heard. Record perused.

8. Respondent No.1 while deciding R.O.R. No.16 of 2007 has based his decision on the grounds that Abdul Mannan father of Abdul Hannan was Lamberdar of the said Chak. On his death applications were invited for the appointment of a new Lamberdar. The parties were contesting candidates along with others for the said post of Lamberdar. The family of respondent is holding the impugned post of Lamberdar for the last 70 years, there has never been any complaint even against the grandfather or father of the respondent, their services were acknowledged by the residents of village, have preferential hereditary right/claim for the post of Lamberdar which excludes the eligibility of all other candidates, holds 8 kanals 4 marlas land in addition to one square of land under IHlorse Breeding Scheme. Tasneem Akhtar also owns 4 lcanals and 14 marlas of land and is Headmistress of a School, belongs to Rajput family which is the largest in the village having 103 landowners with 330 acres of land. On the contrary Safdar Ali is from Jatt family who are 29 in numbers and have 124 acres of land. The petitioner is F.A. whereas, the respondent No.4 is a third year's student. The respondent No.4 is a permanent resident of the village while the petitioner is residing in Renala Khurd and his family is settled in America. Moreover, the District Officer (Revenue), Okara, while deciding the matter of appointment of Lamberdar did not keep in mind the volume of families of both the parties and had appointed Safdar Ali as Lamberdar in total disregard of the basic qualifications for the post and Executive District Officer (Revenue), Okara has rightly set aside the order of the District Officer (Revenue), Okara. The qualification and other credentials of the candidates have not been appreciated properly by the District Officer (Revenue). Although rule of primogeniture is no more an overriding condition but heredity claim still remains an important consideration for appointment of a fresh Lamberdar. Mr. Abdul Hannan is a young man, owns sufficient land to stand guarantee for performance of functions of Lamberdar and belongs to the majority community of Rajput in the Chak and the son of deceased Lamberdar. In view of these considerations, Executive District Officer (Revenue) has rightly appointed him Lamberdar of the Chak. Accordingly, the decision of the Executive District Officer (Revenue) dated 21-2-2007 appointing Abdul Hannan as Lamberdar of Chak No.1/1-L, Tehsil Renala Khurd, District Okara is upheld and the revision petition is dismissed.

9. Respondent No.1 while passing order has ignored the law laid down in case "Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan" reported as (PLD 1999 Supreme Court 484), whereby, the law of primogeniture ' was declared as against Injunction of Islam and it was categorically provided that a minor or incapable person cannot be appointed as Lamberdar. During the arguments learned counsel for respondent No.4 has bluntly admitted that at the time of death of original Lamberdar, the age of respondent No.4 was 16 years and he was minor. The factum of minority of respondent No.4 is further confirmed while reading the grounds of appeal filed by respondent No.4 before the Executive District Officer (Revenue), Okara. This appeal was filed by respondent No.4 through next friend Mazhar Zaidi son of Muhammad Aslam, but this important fact of minority of respondent No.4 was not taken into consideration by both the courts below while deciding the appointment of Lamberdar and both the learned courts below have erred while declaring the B respondent No.4 as Lamberdar.

10. As a result of above discussion, this writ petition is allowed, the impugned orders dated 20-3-2010 passed by Member Board of Revenue, Punjab, Lahore, and order dated 21-2-2007 passed by Executive District Officer (Revenue), Okara, are set aside and the order dated 2-3-2006 passed by District Officer (Revenue), Okara, is restored. A.R.K./S-177/L Petition accepted.