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Writ Petitions Nos. 4980/LHR of 1982 and 13 of 1983/BWP, decided on 9th April, 1983.
‑‑ Rr. 16, 17 & 19(2) ‑ Appointment of headman ‑ Revenue officers having rich experience and extensive training in field best judges of making choice‑Hereditary claim of candidate to be given preference and matters mentioned in r. 17 to be taken in account.
Ghulam Rasool v. Nazar Muhammad P L D 1952 Rev. 33 distinguished.
Ghulam Hussain v. Ghulam Muhammad and another 1976 S C M R 75 fol.
‑‑ Art. 9‑Question not raised before lower tribunals, held, cannot be agitated before and investigated by High Court in constitutional jurisdiction.
‑‑ Art. 9‑‑Writ petition succeeds if impugned order ultra vires; exercise of excess jurisdiction and taking away of legal. right.
‑‑ Rr. 16, 17 & 18‑Appointment of headman‑Commissioner and Board of Revenue have unfettered and unabridged jurisdiction to pass order of re: appointment‑Appointment of headman not vested right of a person to claim much less a substantive right Appointment of headman being for fiscal purpose cannot be claimed as right.
Malik Mohammad Qasim for Petitioner.
M. M. Rahim for Respondent No. 1.
Mian Allah Nawaz for Respondent No. 2.
Date of hearing : 9th April, 1983.
This constitutional petition has sought to set aside the order of the Commissioner, Bahawalpur Division, Babawalpur dated 27th November, 1981 and that of the Member, Board of Revenue, Punjab dated 10th November, 1982.
2. The relevant facts of this case in brief are that the petitioner was a candidate to be appointed as a headman of village Kot Mithey Khan. The Assistant Commissioner, Rahimyar Khan temporarily appointed the petitioner as a headman of the said village the recommendation of the Tehsildar on 17th March, 1980. Qadir Bakhsh respondent No. 2 filed an appeal against the order of the Assistant Commissioner/ Collector before the Commissioner, Bahawalpur Division which was accepted on 27th November, 1981. The petitioner approached the Board of Revenue in revision against the order of the Commissioner but was unsuccessful on 10th November, 1982. The petitioner has sought a declaration that both the orders of the Commissioner and the Member Board of 'Revenue be declared illegal, void and without lawful authority.
3. This petition is mainly grounded on the plea that Qadir Bakhsh was superseded for his appointment as headman of this village and his case could not be reconsidered. Secondly, it has been alleged that Sardar Ahmad Ali, the father of respondent No. 2 was never appointed as a headman of the village and respondent No. 2 could not put forth the hereditary claim for such appointment.
4. In support of his contention, Ghulam Rasool v. Nazar Muhammad (P L D 1952 Pb. (Rev.) 33) has been referred to. In the said case, one Sheikh Ahmad was a headman of the village and on his demise he was survived by Ghulam Rasool and Ghulam Haider, his sons. Ghulam Rasool being the eldest son relinquished his claim in favour of his younger brother Ghulam Haider. Ghulam Haider was dismissed as he had committed forgery and Nazar Muhammad, the son of Ghulam Haider, became a candidate for his appointment as a headman. Ghulam Rasool, the uncle of Nazar Muhammad also contested for the said office and it was held that he was not eligible for appointment, on hereditary claim as he was once superseded
5. The facts of the instant case are different. Sardar Ali Ahmad Khan, the father of Qadir Bakhsh respondent No. 2 was a headman of three villages namely, Kot Sanjar Khan, Chachran and Kot Mithey Khan. Qadir Bakhsh was appointed the headman of village of Kot Sanjar Khan and village Chachran. The Assistant Commissioner/Collector, Rahimyar Khan appointed the petitioner as a provisional headman of Kot Mithey Khan on the ground that Qadir Bakhsh had already been appointed the headman of two villages. On appeal, the learned Commissioner, Bahawalpur Division quashed the order of the Collector, Rahimyar Khan and with reference to rule 19(2) of the West Pakistan Land Revenue Rules, 1968 (which shall hereinafter be referred to as the Rules) appointed Qadir Bakhsh as a headman of Kot Mithey Khan. The revision petition lodged before the Member, Board of Revenue, Punjab also failed. Qadir Bakhsh was never superseded by the petitioner. The order of the Col lector, Rahimyar Khan was open to objection under rule 16 of the said Rules because a single headman had been appointed for three villages and he had increased the number of headmen by appointing the petitioner as headman of Kot Mithey Khan which could not have been done except by or under the order of the Commissioner.
6. Rule 17 and the relevant portion of rule 19 of the Rules may be reproduced as under :‑
Rule 17‑‑
"in all first appointments of headmen regard shall be had among other matters to
(a) the hereditary claims of the candidate ;
(6) extent of property in the estate, if there are no sub‑divisions of the estate, and in case there be sub‑divisions of the estate the extent of the property in the sub‑division for which appointment is to be made, possessed by the candidate ;
(c) services rendered to the Government by him or by his family ;
(d) his personal influence, character, ability and freedom from indebtedness ;
(e) the strength and importance of the community from which selec tion of a headman is to be made ;
(f) his ability to undergo training in Civil Defence in the case of headmen in Tehsils situated along the Border."
Rule 19‑
(1) "In an estate or sub‑division 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 sub‑division 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 x. 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 collateral of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant, in h the male line, of the paternal‑great‑grandfather o the last incumbent."
X 7. It may be seen that the hereditary claim of a candidate is to be given preference and the other matters mentioned in rule 17 are also to be taken into account. The Revenue Officers are the best judges of making a choice in view of their rich experience and extensive training in this field. It was so held in Ghulam Hussain v. Ghulam Muhammad and another (1976SCM R75).
8. The second contention of the petitioner that Sardar Ahmad Ali Khan was never appointed as a headman of village Kot Mithey Khan is falsified by the orders of the Assistant Collector/Collector dated 17th March. 1980 and that of the Commissioner, Bahawalpur Division dated 27th November, 1980 wherein it has been stated that a vacancy of a head. man occurred on the demise of Ahmad Ali, a headman of this village. Ch. Muhammad Saeed, the Commissioner, Bahawalpur Division had also recorded in his order dated 27th November, 1980 that Sardar Ahmad Ali was the permanent headman of Kot Mithey Khan who had expired. In this view the matter, there is hardly any room for this argument that the father of Qadir Bakhsh was not a permanent headman of this village.
9. It has been represented that the brother of the petitioner was appointed as a headman of the village who was suspended and thereafter) he was appointed as a temporary This point has not been taken before the Revenue Officers and' it cannot be agitated again before this Court while arguing a constitutional petition nor can it be investigated at this stage.
10. A writ petition succeeds if :‑
(i) the impugned order is ultra vires ;
(ii) there is an exercise of excess of jurisdiction ; or
(iii) a legal right has been taken away.
11. I see nothing wrong with the impugned order. The Commis sioner and the Member, Board of Revenue had the unfettered and un abridged jurisdiction to pass the impugned orders. They did not exceed the jurisdiction conferred upon them by law. It is not the vested right of a person like the petitioner to claim his appointment as a headman, much less a substantive right. A Lambardar is appointed for a fiscal purpose i.e for the collection of land revenue by the Government and he cannot claim his appointment as of right, This being so, this writ petition fails and is dismissed in limine.
Petition dismissed.
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