GHULAM HUSSAIN vs GHULAM MUHAMMAD AND Another

ORDER

1. MUHAMMAD GUL. J.-This petition is from the judgment of the Lahore High Court dated 1'.1-1975 dismissing in limine writ petition filed by the petitioner herein in relation to the appointment of Lambardar of Chak No. 191/R. B. Tehsil and District Lyallpur under rule 19 of the Land Revenue Rules.

2. The facts briefly are that the petitioner was initially appointed Lambardar of the Chak by the Collector in a vacancy caused by the removal of the previous incumbent. On appeal by respondent to the Commissioner the petitioner's appointment was set aside by the Commissioner and respondent was appointed in his stead. However, on revision by the petitioner the order of the Collector was restored by a learned Member Board of Revenue vide order dated 19-5-1971 and the petitioner was re--appointed. The respondent later moved an application for review which was heard by the successor Member Board of Revenue who vide order dated 6- 1-1975 reversed the order of his predecessor and restored that of the Commis--sioner appointing the respondent as Lambardar. The petitioner then challenged the: order in review by the learned Member Board of Revenue in writ jurisdiction of the High Court on the ground that the Board of Revenue cannot review its own order under section 163 of the West Pakistan Land Revenue Act 1969 and that in any event the order in review was in excess of the jurisdiction it any of the Board of Revenue. The above grounds were repelled by the learned Judge who took the view that section 8 of the West Pakistan Board of Revenue Act confers plenary power of review upon the Board and it can review its own judgment or order subject to certain conditions specified therein, and mere failure to refer to section 8 of the West Pakistan Board of Revenue Act, or an erroneous reference to sec--tion 163 of the Land Revenue Act, will not alter the nature of the order. Accordingly, in the opinion of the learned Judge there was "no good ground" to warrant interference by the High Court with the order In review of the Member Board of Revenue dated 6-1-1975.

3. Sheikh Ghias Muhammad, learned counsel for the petitioner submitted that even if it be assumed that the Board of Revenue could review its own earlier order under Section 8 of the West Pakistan Board of Revenue Act, the judgment of the High Court proceeded on an erroneous interpretation of rule 19 (2) (a) of the Land Revenue Rules. The argument rested against the background of the facts that the initial revisional order by the learned Member Board of Revenue proceeded on a finding of fact that the petitioner was a nearer consaguine of the previous Lambardar. The rule 19 (2) (a) reads :- .

4. "19 (2) (a) In other estates, the nearest eligible heir, according to the rule 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 provisions:- '(a) The claim of a collateral of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant, in the male line, of the paternal-great- grandfather of the last incumbent."

5. The argument of the learned counsel was that the petitioner being nearer consanguine compared to the respondent was "nearest eligible heir", and a such bad the right to be appointed Lambardar in competition with the respondent. The argument in our opinion is misconceived. On its proper construction far from conferring any right much less a legal right, the rule a bestin 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 eligible 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 heirarchy 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. The petition is dismissed.