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R.O.R. Nos.902 and 1317 of 1996, decided on 4th March, 2008.

----Ss. 36 & 164---West Pakistan Land Revenue Rules, 1968, R.17---Appointment of Lamberdar---Respondent, who was son of deceased Lamberdar, was appointed Lamberdar on the ground that he was son of deceased Lamberdar and was entitled to be appointed as such---Appointment order passed by the Collector was upheld by the-Commissioner---Appointment of the respondent was challenged by the petitioner on the ground; firstly that respondent owned only 39 Kanals of land, whereas the petitioner owned 360 Kanals-2, Marlas; secondly that respondent was convicted in a criminal case; thirdly that hereditary claim was not available to the respondent as said claim had been declared to be against the injunctions of Islam as reported in PLD 1999 SC 444; and that hereditary claim could be ignored, if the person claiming hereditary claim had some disqualification or was not favourable candidate as appointment of Lamberdar was essentially an administrative appointment for convenience and assistance of the administration and also for taking care of the interest of the landowners---Validity---Mere fact that one owned more land than the other, was no ground to give preference---If property of candidate was sufficient to meet government demand, it was not necessary to ignore him because his property was less than that of other candidate---Choice of District Collector had to be given due weight while deciding Lamberdari cases--Main allegation against respondent was that he was a convicted person---Respondent clarified that probation order passed against him did not tantamount to conviction---Respondent had been performing duty as Lamberdar since 1995, but no case of embezzlement pertaining to revenue matter was ever registered against him---Case under Ss.420, 468 & 471, P.P.C. no doubt was registered against the respondent, but he was discharged in that case later on---Concurrent orders passed by two forums whereby respondent was appointed as Lamberdar, were upheld by Board of Revenue---Executive District Officer (Revenue)/Revenue Staff was directed to implement said order. PLD 1999 SC 444; 1968 SCMR 665; PLD 1995 Rev. 68; 1992 MLD 1418; Board of Revenue, Punjab Ghulam Farid v. Ahmad Din 1990 CLC 1983; Mehr Ali v. Noor Muhammad 2007 SCMR 1965; Muhammad Amir v. Naeem Arshad 2001 CLC 1773; PLD 1959 Rey. 53 and PLD 1959 Rev. 62 ref. Hameed Jilani, Muhammad Saeed Asadi and Muhammad Irshad for Petitioner.

Sabir Hussain Baloch for Respondent.

.---These are revision petitions under section 164 of Land Revenue Act, 1967, against order, dated. 15-4-1996 passed by Commissioner, Sargodha Division, Sargodha. The Deputy Commissioner, Mianwali vide his order, dated 18-6-1995 appointed Mr. Ishtiaq Hussain as lambardar of Chak No.14/ML Tehsil Piplan, District Mianwali. Hence these revision petitions. Thus this single order disposes of R.O.R. No.902 of 1996 and R.O.R. No.1317 of 1996. 2. Mr. Hameed Jilani, Mr. Muhammad Saeed Asadi and Mr. Muhammad Irshad, Advocates, represented the petitioner and Mr. Sabir Hussain Baloch, Advocate represented respondent Ishtiaq Ahmad. Arguments heard and record perused. 3. The learned counsel for the petitioner Mr. Dildar Khan argued that Mr. Ishtiaq Ahmad, owns 39 Kanals of land. He was convicted for one year in 1985. He was fined Rs.1500 in another case. He is a Matriculate. 4. The learned counsel for the petitioner, Dildar Khan further argued that on the death of Mushtaq Ahmad temporary Lambardar; the Collector, Mianwali vide his order, dated 18-6-1995 appointed the respondent Ishtiaq Ahmad as the Lambardar on the ground that he was the son of Mushtaq Ahmad deceased Lambardar and was entitled to be appointed as such. An appeal was filed before the Commissioner, Sargodha Division by the petitioner, which was disposed of with the following concluding findings:--

"After hearing the arguments of both the parties, I have come to the conclusion that the District Collector has rightly appointed Ishtiaq Ahmad, Lambardar following the rule of primogeniture against the post fallen vacant on the death of ex-Lambardar, his father. The impugned order does not suffer from any illegality and is maintainable. The appeals having no force are rejected." Both the Courts below merely appointed the respondent Ishtiaq Ahmad as Lambardar after having read in the record that his father was a Lambardar not realizing that the appointment of his father Mushtaq Ahmad was never made on regular basis and it was necessary at some point of time to appoint a permanent Lambardar and only then the rules of primogeniture could be made applicable for the appointment of the eldest son as Lambardar. The learned counsel for the petitioner argued that both the Courts below fell into error while making appointment as they proceeded to rely on his hereditary claim whereas hereditary claim was not available to the respondent for more than one reason. Firstly the same has been declared to be against the injunctions of Islam as reported in PLD 1999 SC 444. Moreover, hereditary claim can be ignored even if the person claiming hereditary claim has some disqualification or is not a favourable candidate as appointment of Lambardar is essentially an administrative appointment for convenience and assistance of the administration and also for taking care of the interests of the land owners. A person who indulges in criminal case cannot be considered to be suitable person for appointment of Lambardar and the authorities are bound to consider the conduct of a party. The conduct of the petitioner is exemplary. Reliance was placed on:00

(i) 1968 SCMR 665; (ii) PLD 1995 Rev. 68 and (iii) 1992 MLD 1418. 5. The learned counsel for the petitioner prayed that order passed by the District Collector, Mianwali, dated 18-6-1995 and that of the Commissioner, Sargodha Division, dated 15-4-1996 may be set aside and Mr. Dildar Khan be appointed as Lambardar of Revenue Estate of Chak No.14/ML, Tehsil Piplan, District Mianwali being the most suitable candidate. 6. It was argued on behalf of Dildar Khan that he did have hereditary claim. Mr. Dildar Khan owns 360 Kanals, 2 Marlas of land. He served as Member Union Council and he had no conviction. Mr. Dildar is a Matriculate and he is not a defaulter. It was further argued that he belongs to Rajput community. 7. The learned counsel on behalf of Mr. Ishtiaq Ahmad clarified that probation order passed against Ishtiaq Ahmad does not tantamount to conviction. Mr. Ishtiaq Ahmad was rightly appointed as Lambardar by the, D.C. Mianwali. His decision was upheld by Commissioner, Sargodha Division. Ishtiaq Ahmad had experience as Lambardar since 1995. Learned counsel on behalf of Mr. Ishtiaq Ahmad argued that two F.I.Rs. were lodged against Dildar Khan. One of them was F.I.R. No.337, dated 1-6-2006 and a Criminal case is pending against Mr. Dildar Khan in the Court of Mr. Khizar Hayat Minhas, Civil Judge. 8. The learned counsel for the respondent further argued that a case under sections 420/468, 471, Pakistan Penal Code was registered against Ishtiaq Ahmad, respondent vide F.I.R. No.169 of 07, dated 1-14-2007 Police Station Harnoli, District Mianwali but the respondent was discharged in this case later on. 9. Now criteria as laid down in rule 17 of the Punjab Land Revenue Rules of 1968 shall be discussed. In all first appointments of headmen regard shall be had among other matters to,--- given infra:-

10. After hearing the parties and perusing the record, I have reached the conclusion that the version of the respondent Ishtiaq Ahmad is more dependable and reliable. It was held in 1990 CLC 1983 (Board of Revenue, Punjab) (Ghulam Farid v. Ahmad Din):--

"It is a well-settled principle that, all things being equal, the choice of the District Collector should be respected. In a case where the contestants are evenly poised the choice of the Collector gains added significance and cannot be easily brushed aside when it is neither perverse nor unlawful." 11. It was held in 2007 SCMR 1965, Supreme Court of Pakistan, Mehr Ali v. Noor Muhammad, West Pakistan Land Revenue Rules, 1968, Rr.17 and 19(2).---West Pakistan Board of Revenue Act (XI of 1957), S.7---Constitution of Pakistan (1973), Art.185 (3)---Appointment of Lambardar---Concurrent findings of fact by the Courts below---Revisional jurisdiction of Board of Revenue---Scope---Collector on recommendation of Assistant Commissioner, appointed respondent as Lambardar---Petitioner being aggrieved of the appointment filed appeal before Commissioner, which was dismissed but Board of Revenue appointed petitioner as Lambardar---High Court, in exercise of constitutional jurisdiction restored the order passed by Commissioner---Validity---Concurrent findings of facts recorded by two Courts were on record---Orders of both the forums were based on correct appreciation of facts and law and there was no misreading or non-reading of material, or misconstruction of law---Board of Revenue, while exercising revisional jurisdiction, was not justified to disturb concurrent findings of fact recorded by the Courts below---High Court had rightly set aside the orders of Board of Revenue and restored orders of two forums below--- Leave to appeal was refused. It was held in Muhammad Amir v. Naeem Arshad 2001 CLC 1773: "Choice of District Collector upheld as no specific disqualification or ineligibility was pointed out against selected candidate." The learned counsel for the respondent Mr. Ishtiaq Ahmad relied on 2001 CLC 1773:--

"Respondent was choice of District Collector to be appointed as Lambardar and no specific disqualification or ineligibility of respondent had been pointed out against him by the petitioner the rival candidate---Choice of District Collector in selecting a Lambardar ought not to be interfered with unless any gross irregularity was found in such appointment---Order of District Collector appointing the respondent as Lambardar was upheld by Board of Revenue in revision." Mere fact that one owns more land than other is no ground to give preference (PLD 1959 Rev 53). Similarly PLD 1959 Rev 62 states that if property of candidate is sufficient to meet Government demand, it is not necessary to ignore him because his property is less than that of other candidate. 12. It was held by Mr. Shaukat Iqbal, learned Member (Judicial-II), Board of Revenue, Punjab in ROR No. 1308 of 2002, Manzoor Ahmad v. Shaukat Ali. "The choice of District Collector has to be given due weight while deciding Lambardari cases." 13. According to section 11 of the Probation of Offenders Ordinance, 1960, probation order does not tantamount to conviction:-

"Effects of discharge and probation (1) A conviction of an offence, for which an order is made under section 4 or section 5 for discharging the offender after the due admonition or conditionally or placing him on probation shall be deemed" not be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the provisions of this Ordinance." 14. Main allegation against respondent Ishtiaq Ahmad is that he is a convicted person. He has been performing duty as Lambardar since 1995, no case of embezzlement pertaining to revenue matters was ever registered against him. A probation order was passed against him. In this connection, I would refer to various authorities and the relevant law. It was held by Mr. Tariq Yousuf learned Member (Colonies), Board of Revenue, Punjab in ROR No. 2769 of 1995, Fazal Elahi v. Ali Ahmad:--

"Ali Ahmad has recovered sufficient outstanding arrears of land revenue. He was appointed Lambardar by the Deputy Commissioner/Collector vide order, dated 4-9-1994 and this order was upheld by the Commissioner. Regarding conviction of Ali Ahmad under section 4 of Probation of Offenders Ordinance, 1960, section 11(2) of the Ordinance provides that the offender who is placed on probation shall in any event be disregarded for the purposes of any law which imposes any disqualification or disability upon convicted persons or authorizes or requires the imposition of any such disqualification or disability. It is thus clear that placing on probation of Ali Ahmad is not to be considered as disqualification under Land Revenue Act, 1967 for his appointment as Lambardar. The conclusion, therefore, is that placing of Ali Ahmad on probation is no disqualification." 15. Thus the Revision Petitions 902/96 and 1317/96 are rejected and both the orders passed by the Commissioner, Sargodha, dated 15-4-1996 and order, dated 18-6-1995 passed by the Deputy Commissioner, Mianwali are upheld. Mr. Ishtiaq Ahmad shall continue as permanent Lambardar of Chak No.14/ML, Tehsil Piplan, District Mianwali. 15-A. Executive District Officer (Revenue) Mianwali/the Revenue staff is directed to implement this order forthwith. H.B.T./16/Rev. Revisions dismissed.

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