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Review Petition in R.O.A. No.308 of 1968‑69, decided on 11th March, 1987.
‑‑‑S.8‑‑Review‑‑Petition against earlier order of Board of Revenue filed beyond limitation‑‑Petitioner although a contestant for the post of Lambardar, not served with proper notice‑‑ Condonation of delay whether permissible‑‑Where proceedings before Board of Revenue against petitioner were conducted ex parte while same parties had been hotly contesting their claim before Collector, and fact of such contest was not disclosed before Board of Revenue, presumption would be that service on petitioner was fictitious and fraudulent‑ ‑Condonation of delay in filing review application was allowed by Board of Revenue.
P L D 1969 S C 582 fol.
‑‑‑S.8‑‑Review‑‑Orders against petitioner passed ex parte‑‑Factum of remand having been concealed from Board of Revenue, the service on petitioner being fictitious and fraudulent, and the fact that petitioner had been serving as Lambardar for the last seventeen years having been confirmed in such post by Appellate Court against which no appeal had been filed by respondent‑‑Board of Revenue confirmed petitioner as a permanent Lambardar and reviewed the ex parte order passed earlier in favour of respondent.
Sheikh Hakam Ali for Petitioner.
Mian Muhammad Bashir for Respondent. .
The facts relevant for the disposal of this petition are that Syed Nazar Hussain was appointed as permanent Lambardar of Mauza Tibbi Izzat, tehsil Ahmadpur East vide orders dated 10‑12‑1968 passed by DC/Collector, Bahawalpur. In appeal the learned Commissioner, Bahawalpur vide his orders dated 31‑3‑1969 remanded the case holding that insolvency of the brother of Syed Zulfiqar Shah, the contesting candidate, in fact was not a disqualification and that he was eligible for this post on the basis of the rule of primogeniture. The present petitioner Syed Zulfiqar Shah had been contesting the case in remand proceedings, whereas, Syed Nazar Hussain Shah simultaneously challenged the orders of the Commissioner, before the Board of Revenue, and my learned predecessor vide his orders dated 6‑4‑1971, accepted the appeal and confirmed orders of DC/Collector, dated 10‑12‑1968 appointing Syed Nazar Hussain as lamabardar. This order was passed behind the back of the present petitioner Syed Zulfiqar Shah, who was condemned unheard. The appellant before the Board of Revenue, Syed Nazar Hussain Shah had concealed the fact that in remand proceedings both the candidates were actively participating and during the pendency of his appeal before the Board of Revenue, the DC/Collector vide his orders dated 30‑12‑1969 had appointed Syed Zulfiqar Shah as permanent Lambardar and that those orders were further confirmed by the learned Commissioner, Bahawalpur vide his order dated 30‑3‑1970. In accordance with the above mentioned orders the present petitioner Syed Zulfiqar Shah continued to work as lambardar for a long time till 1986, when suddenly Syed Nazar Hussain Shah produced a copy of orders dated 6‑4‑1971 passed by my learned predecessor in Appeal No.308/1968‑69 and tried to get Dhall Bachh. Hence the present petition.
2. I have heard the learned counsel for both the parties and perused the impugned orders. From the facts of the case it is established that Syed Zulfiqar Shah after remand was appointed as lambardar by DC/Collector vide orders dated 30‑12‑1969 and has been continuously performing his duties as such for a long period of about 17 years and the respondent Syed Nazar Hussain Shah did not disclose it before my predecessor or before the DC/Collector or Commissioner about his appeal in the Board of Revenue. He has been contesting on both sides. The learned Commissioner rejected his appeal on 30‑3‑1970, yet he got his appeal, filed against orders dated 31‑3‑1969 passed by the Commissioner, admitted for regular hearing before my predecessor on 29‑4‑1970 which was decided ex parte against Syed Zulfiqar Shah on 6‑4‑1971. It is not believable that a person who was contesting so emphatically for this post would not appear before the learned Member, Board of Revenue. There is thus a lot of weight in the presumption that service on Syed Zulfiqar Shah was fictitious and fraudulent. He never received any notice. He was busy before the DC/Collector after first remand orders of the Commissioner, anti then after his appointment by the DC/Collector he defended it successfully before the Commissioner. Syed Nazar Hussain Shah has, not worked as lambardar during the last 17 years, whereas, Zulfiqai'i Shah has done so. The learned counsel for Syed Zulfiqar Shah has referred me to P L D 1969 S C 582 and has requested that they present petition be treated as review petition and the delay be condoned. In view of this position I would treat this petition as review a/s 8 of the West Pakistan Board of Revenue Act, 1957 and condone the delay in filing the petition.
3. Orders of my learned predecessor were ex parte. Now I have heard both sides and considered the merits of the case. In view or the hereditary claim of Syed Zulfiqar Shah and the decision of the DC/Collector dated 30‑12‑1969 as upheld by the learned Commissioner on 30‑3‑1970, I would appoint Syed Zulfiqar Shah as permanent lambardar. This order will also supersede any other orders given by the Commissioner in compliance with my predecessor's orders.
A. A. /231/R Order accordingly.
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