2011 SCMR 203 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, CJ.-This petition for leave to appeal has been filed against the judgment dated 14-9-2010 passed by Lahore High Court, Lahore whereby Writ Petition filed by respondent No. 1 Safdar Ali has been allowed.

2. Learned counsel appearing for the petitioner contended that on the death of Abdul Mannan, Lamberdar of Chak No.1/1-L, Tehsil Renala Khurd, District Okara, respondent No. 1 Safdar Ali was appointed as Lamberdar on 2-3-2006 by the District Officer (Revenue), which order was challenged by the petitioner before the Executive District Officer (Revenue) in Appeal who vide order dated 21-2-2007 accepted the appeal filed by the petitioner and appointed him as Lamberdar of the Chak. This order was challenged by respondent No.1 in ROA No. 16 of 2007 before the Member, Board of Revenue, who vide judgment dated 26-11-2007, set aside the order dated 21-2-2007 passed by the Executive District Officer (Revenue) and remanded the case to the Executive District Officer (Revenue) for decision afresh. Against this remand order the respondent No.1 preferred a Writ Petition bearing No.1116 of 2008 before the learned High Court, which was decided with the consent of the parties and case was again remanded to the Board of Revenue, as such on 20-3-2010 Board of Revenue decided the matter afresh while holding that the petitioner was entitled to be appointed as Lamberdar of the Chak. By this time, it is stated, petitioner's age was 21 years 6 months and 14 days. Be that as it may order dated 20-3-2010 was challenged before the learned High Court in writ petition by respondent No.1, which has now been decided in his favour and against the petitioner by means of impugned judgment.

3. According to the learned counsel, the petitioner has been wrongly non-suited being the minor because for the first time when he was appointed as Lamberdar he was 18 years old and was eligible to be appointed as Lamberdar in view of Rule 17 of the West Pakistan Land Revenue Rules, 1968, therefore, impugned judgment being not sustainable in the eye of law, is required to be set aside by this Court.

4. On the other hand learned counsel appearing for respondent No.1 has contended that the petitioner had claimed his appointment as Lamberdar on the principle of primogeniture which has been declared against injunction of Islam in view of judgment of this Court in the case of Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan (PLD 1999 SC 484); secondly, learned counsel has argued that at the time of submitting his application, the petitioner was minor as it is evident that against the order of District Revenue Officer he had filed appeal through his next friend Mazhar Zaidi son of Muhammad Aslam therefore for such reason the learned High Court had rightly accepted the petition filed by respondent No.1.

5. We have heard the learned counsel for the parties and have also gone through the impugned judgment and other material available on record carefully. Operative para from the impugned judgment is reproduced herein below for ready reference:- "

8. Respondent No.1 while deciding ROR 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 08 Kanals, 04 Marlas land in addition to one square of land under Horse Breeding Scheme. Tasneem Akhtar also owns 04 Kanals 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 years' 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 youngman, owns sufficient land to stand guarantee for performance of functions of Lamberdar and belongs to the majority community of Rajput in the Chak and he is son of deceased Lamberdar. In view of these considerations, Executive District Officer (Revanue) 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 is dismissed." It is to be noted that as far as the judgment impugned herein is concerned, the learned High Court has non-suited the petitioner because he was claiming his appointment as Lamberdar on the principle of primogeniture but not for the reason that he was minor. On having gone through the facts and circumstances of the case, which have been narrated herein above, the petitioner at the time of his first appointment was not minor as his age was 18 years, 5 month and 16 days; subsequently, when the matter was finally decided by the Board of Revenue on 30-10-2007 holding that he is qualified to be appointed as Lamberdar, his age was 21 years 6 months and 14 days. Therefore, we are of the opinion that in such view of the matter, the learned High Court may have not interfered in the appointment of the petitioner as Lamberdar merely on the only ground that he was minor and that too without taking into consideration any other aspect of the case. Thus, the impugned judgment on this score alone is not sustainable in the eye of law. For the foregoing reasons, this petition is converted into appeal and allowed with all its legal consequences. Parties are left to bear their own costs. S.A.K./A-116/SC Appeal accepted.