NOOR MUHAMMAD Versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE

In this writ petition the order dated 27‑7‑1986 passed by the learned, Member Board of Revenue in the matter of appointment of a Lambardar has been challenged.

2. The facts of the case are that one Sohanra was Lambardar of the village in question who was removed from the said post having alienated his entire land and having thus become landless. It is provided in rule 18 of the West Pakistan Land Revenue Rules, 1968, which lays down that if a Lambardar becomes landless he was liable to be removed. On his removal the question of appointment of a new Lambardar arose and the contest was between the present petitioner who is the son of said Sohanra and respondent No.2 Muhammad Younas who also applied for appointment. The AC/Collector vide his order dated 31‑7‑1984 appointed respondent No.2 as Lambardar and on appeal filed by the present petitioner the learned Commissioner vide his order dated 3‑3‑1986 appointed the petitioner as Lambardar applying rule 19 (2) of the said Rules. On revision petition filed by respondent No.2, the learned Member, Board of Revenue set aside the said order of learned Commissioner and appointed respondent No.2 as Lambardar through order dated 27‑7‑1986 which has been challenged in this writ petition.

3. Learned counsel for the petitioner has raised the contention that it was a case where an appointment was to be made under Rule 19 of the said Rules on the basis of succession and it could not be treated as a case of fresh appointment, therefore, respondent No‑2 could not have been appointed unless the petitioner was found disqualified on account of such circumstances as showed that it had become impossible to apply the said rule. It is urged that said rule had created a fiction according to which the appointment of successor of a removed Lambardar is to be treated as a case of appointment on succession and rule of primogeniture as contained therein was applicable. He argued that if the removal of the father of the petitioner had taken place on the basis of allegations of moral turpitude only then the petitioner could be ignored as provided in rule 19 (2) and if the removal was on the grounds which were not such as to attach a stigma then the petitioner was entitled to be appointed on the basis of said rule of primogeniture and in this case since the removal was only on the ground that Lambardar had transferred his land and as such became landless, therefore, it was not such a ground as could carry with it a stigma. He has also referred to a policy decision of the Government conveyed through Letter No.899‑87/2061‑CV dated 24‑8‑1987 in which it was made clear that the hereditary claim of Lambardars must be kept in view and no departure should be made from that despite existing provision of Rule 17 (a) of the said Rules reau with rule 19 (2). It has also been argued that Sohanra father of the petitioner transferred the land to the petitioner and not to a stranger.

4. On the other hand learned counsel for respondent No.2 has contested the correctness of these submissions and he argued that since the father of the petitioner was removed that fact was sufficient in itself to disqualify the petitioner himself for appointment. It was argued that rule 19 (2) was not mandatory and, therefore, departure could be made from the same.

5. It has also been argued with reference to case‑law cited as Allah Ditta v. Mian Nisar Ahmad (P.L.D. 1973 Lah. 359), Khadi Khan v. Mst. Resham Jan (1983 CLC 57, Sharaf Din v. Qazi Abdul Jalil (1986 SCMR 1368), Bashir Ahmad v. M.B.R. etc 1987 CLC 1862, Masood Ahmad v. M.B.R etc: (1982 CLC 357), Ghulam Hussain v. Ghulam Muhammad (1976 SCMR 75) and Rehmat Ali v. M.B.R. etc (1974 SCMR 171), that there is no vested right in the appointment of a Lambardar, therefore, the writ petition was not competent. A great deal of stress has been laid by the learned counsel for the respondent upon the contention that appointment of Lambardar is essentially an administrative matter lying within the discretion of the revenue authorities and as such the same does not fall within the scope of writ jurisdiction.

6. I have considered the submissions made by the learned counsel for the parties. The ground on which the petitioner has been ignored by the Member, Board of Revenue is that no right of primogeniture would be available to the respondent (now writ petitioner) since his father was removed from the office. In order to appreciate the controversy thus raised it is necessary to state that appointment of Lambardar is governed by the provision contained in West Pakistan Land Revenue Rules, 1968. Rule 17 relates to first appointment of Lambardar and rule 19 relates to appointment of a successor. In a case covered by Rule 19 it is provided that nearest eligible heir according to rule of primogeniture shall be appointed. Rule 19 is reproduced below for ready reference:‑

"19. Matters to be considered in appointment of successor.‑‑ (1) In an estate or subdivision thereof, owned chiefly or altogether by Government, a successor to the office of headman shall be selected, with due regard to all the considerations, other than hereditary claims, stated in Rule 17:

Provided that in such an estate or subdivision thereof, notified for the purpose by the Board of Revenue, the selection shall as far as possible, be made in the manner prescribed by sub‑rule (2) if a suitable heir is forthcoming.

(2) In other estates, the nearest eligible heir, according to the rules of primogeniture shall be appointed unless, some special custom of succession to the office be distinctly proved but subject, in every case to the following provision,

(a) The claim of collateral of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendent, in the male line, of the paternal great grandfather of the last incumbent.

(b) Where a headman has been dismissed in accordance with the provisions of Rule 18, the Collector may refuse to appoint any of his heirs,‑

(i) if the circumstances of the offence, dereliction of duty or disqualification for which the headman was dismissed, make it probable that he would be unsuitable as a headman;

(ii) if there is reason to believe that he has connived at the offence or dereliction of duty for which the headman has been dismissed;

(iii) if any disqualification for which the headman has been dismissed, attaches to him;

(vi) if he may reasonably be supposed to be under the influence of the dismissed headman or his family to an undesirable extent. Explanation. If a dismissed headman's heir is considered fit to succeed, regard shall be had to the property which he would inherit.

(c) The Collector may also refuse to appoint a person claiming as an heir, on any ground which would necessitate or justify the dismissal of that person from the office of the headman.

(d) A female is not ordinarily eligible for appoint‑rent to the office of a headman, but may be appointed, when she is the sole owner of the estate for which the appointment has to be made, or for special reasons.

(3) Failing the appointment of an heir, a successor to the office shall be appointed in the manner, and with regard to the considerations, described in Rule 17.

7. The question calling for consideration is whether the case in hand is covered by rqle 19? There can hardly be any doubt that the appointment sought to be made in the instant case is to fill the vacancy occasioned by removal of Sohanra and as a successor to him. That being so the case is plainly one of appointment of a successor to the removed Lambardar. It follows that application of rule 19 is fully attracted to the case. Consequently the hereditary claim of the petitioner based on rule of primogeniture will prevail.

8. The fact that clause (b) of rule 19 (2) provides for circumstances in which the rule of primogeniture will not be applicable C to the heir of a dismissed Lambardar conclusively implies the existence of such circumstances are necessary as a pre‑condition to exclude the applicability of rule of primogeniture. It follows that failing the existence of such circumstances in a given case the rule of l primogeniture will apply. Thus the plain language employed in rule 19 tells against the view that rule of primogeniture will not be applicable to the petitioner simply because his father was removed from the office of Lambardar. Considering that Sohanra was removed only on the ground of having become landless and on any of the grounds men4ioned in clause (b) of rule 19 (2), therefore, the petitioner could not be held to have became disqualified for appointment as successor, as held by Member, Board of Revenue. The learned Member, Board of Revenue has not correctly interpreted and applied the statutory rules, therefore, his impugned order dated 27‑7‑1986 cannot be sustained. The law does not insist upon existence of a juristic right in order to enable writ jurisdiction to be invoked as has been held in "PLD 1969 SC 223". The law is also well‑settled by now that power of judicial review is available in respect of administrative matters' also particularly when they involve interpretation and application of law and the statutory rules. The discretion exerciseable within the framework of statutory rules in the appointment of the Lambardar does not operate in bar of constitutional jurisdiction. If the law and the rules are shown to have not been properly construed and applied and if a tribunal makes an error of law in deciding a matter the same can be quashed under writ jurisdiction being in excess of law

This view finds strong support from judgment reported as "P L D 1987 SC 447". In view of my above findings that the West Pakistan Land Revenue Rules, 1968 have not been legally construed and correctly applied, the case law relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of this case the said judgments are clearly distinguishable from the facts of this case.

9. In view of the above discussion the impugned order dated 27‑7‑1986 passed by the learned Member, Board of Revenue i.e respondent No.1 suffers from error patent on the face of the record, I accept the writ petition and the said order is hereby declared to have been passed without lawful authority and of no legal effect and the same is quashed. The order passed by the Commissioner Multan Dated 3‑3‑1986 is hereby restored which confirms to the provisions of rule 19 ibid. There shall, however, be no order as to costs.

A. A. /1‑40/L Petition accepted.