Syed Ahmad Naeem VS MBR

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P.No.3372 of 2010

Syed Ahmad Naeem. Vs. Member, Board of Revenue, Lahore, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 30.01.2018. Mr. Zaid Ahmad Mufti, Advocate for petitioner. Mr. Muhammad Aurangzaib Khan, A.A.G.

Respondent No.3 already proceed against ex-parte vide order dated 09.06.2016.

Through this constitutional petition, the petitioner has called in question the order dated 31.07.1997 passed by District Collector, Pakpattan and orders dated 29.01.2005 and 25.01.2010 passed by Member Board of Revenue, Punjab as being against the law on the subject and facts of the case and seeks restoration of order dated 07.08.1999 passed by Commissioner, Multan Division, Multan.

2.Brief facts of the case are that on the recommendation of Deputy Commissioner, Sahiwal, the Additional Commissioner (Revenue), Multan, created an additional post of Lumberdar for Chak No.

132/9-L, Tehsil and District Sahiwal vide order dated 16.05.1967. After completing the necessary formalities, the Deputy Commissioner/Collector, Sahiwal appointed Mufti Zia-ul-Hassan, deceased

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(real brother of the present petitioner) as permanent Lamberdar of the said Chak on 26.06.1967. One Ghulam Haider (deceased) filed an appeal against the said appointment before the Commissioner, Multan Division, Multan and the Commissioner Multan Division, Multan vide order dated 23.01.1968 held that the Additional Commissioner (Revenue), Multan was not competent to create the second post of Lumberdar. Being aggrieved of the said order of Commissioner, Mufti Zia-ul-Hassan filed ROR No.

997/1967-68, which was rejected by the Board of Revenue vide order dated 03.07.1969. Consequently, Mufti Zia-ul-Hassan filed W.P.No. 1040/1969 before this Court, which was dismissed vide order dated 16.05.1983, however, the said order was passed after the death of Mufti Zia-ul-Hassan, who died on 23.02.1983. In the meantime, Ghulam Haider also died. The heirs of Mufti Zia-ul-Hassan challenged the above said order before the Hon’ble Supreme Court of Pakistan by filing civil Appeal No. 115 of 1984, which was allowed vide judgment dated 24.11.1984 and consequently upheld that the Additional Commissioner was competent to create the additional post of Lamberdar. Thereafter, Muhammad Aslam, one of the sons of Ghulam Haider (deceased) filed an application for restoration of the original

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appeal filed by his deceased father Ghulam Haider before the Commissioner Multan, Division, on the ground that the appeal had only been dismissed by the then Commissioner on the ground that the Additional Commissioner was not competent to create the additional post of Lamberdar but as the Supreme Court of Pakistan has held that he was competent to do so, therefore, the appeal be heard on merits. The Commissioner Multan Division, Multan, declined to restore the appeal vide order dated 25.03.1985. The said Muhammad Aslam son of Ghulam Haider (deceased), filed Revision Petition, which was accepted and the learned Member, Board of Revenue, remanded the case on 23.10.1985. This order was challenged through W.P.No. 47/1986 by the heirs of Mufti Zia-ul-Hassan (deceased) Lamberdar, which was allowed vide order dated 27.02.1991 by this Court and the order dated 23.10.1985 passed by the learned Member, Board of Revenue was set-aside with the result that appeal of Ghulam Haider deceased was deemed to be pending before the Commissioner Multan Division, Multan. The Commissioner Multan Division, thereafter rejected the appeal filed by Ghulam Haider vide order dated 28.06.1994 and upheld the order of the District Collector, dated 26.06.1967 appointing Mufti Zia-ul-Hassan

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(Deceased) as permanent Lamberdar. Being aggrieved of the said order Muhammad Aslam son of Ghulam Haider filed revision petition before the Board of Revenue challenging the appointment of Mufti Zia-ul-Hassan (deceased) Lamberdar. The Revision Petition was dismissed on 27.02.1996. The said order was not challenged any further. The petitioner, therefore, applied to Deputy Commissioner /Collector, Sahiwal for his appointment as Lamberdar in Chak No. 132/9-L along with the allotment of 103 Kanals land attached with the post of Lamberdar on the basis of the order of the Commissioner, Multan Division dated 28.06.1994 as approved by the Member, Board of Revenue vide order dated 27.02.1996. On application of Qamar Munir, who was one of the applicants, the Commissioner, Multan Division, Multan vide order dated 21.07.1996 transferred the case to Deputy Commissioner/ Collector, Pakpattan for decision, who vide order dated 31.07.1997 observed that none of the contesting candidates is eligible to be appointed as Lamberdar and directed that fresh applications be invited for the appointment of suitable Lamberdar. The petitioner and some other candidates filed appeals before the Commissioner, Multan Division, Multan, who was pleased to appoint the petitioner as permanent

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Lamberdar of Chak No. 132/9-L, Tehsil and District Sahiwal vide order dated 07.08.1999. The respondent No.3 Shahid Javed, who was among the other contestants challenged the above said order of the Commissioner, Multan dated 07.08.1999 by filing R.O.R No. 1398/1999 before the Board of Revenue which was allowed and the learned Member Board of Revenue vide order dated 29.01.2005 and remanded the case to District Collector, Pakpattan for fresh decision. The present petitioner filed Review Petition No. 205/2005, for recalling of the said order, which was dismissed vide order dated 25.01.2010. The order of the District Collector, Pakpattan dated 31.07.1997 and learned Member Board of Revenue, dated 29.01.2005 passed in R.O.R No. 1398/1999 and dated 25.01.2010 in Review Petition No. 205/2005 in R.O.R No. 1398/1999 are under challenge through this petition.

3.The counsel for the petitioner has argued that the learned Member Board of Revenue had set- aside the appointment of the petitioner on the ground that the petitioner had been appointed solely on the ground of primogeniture whereas the order of the Commissioner, Multan Division shows that the appointment of the petitioner was made in terms of educational qualifications, ownership of land,

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influence and relationship with the deceased Lamberdar and his claim was found to be superior to others, therefore, the findings of the learned Member Board of Revenue are not sustainable in the eye of law and the order is liable to be set-aside.

4.Respondent No.3 Shahid Javed was

summoned through notice in this constitutional petition but despite service he did not turn up and consequently he was proceeded against ex-parte vide order dated 09.06.2016. The said respondent till date has not filed any application for setting-aside exparte proceedings.

5.Learned A.A.G has fully supported the afore-referred order passed by the Member Board of Revenue and finally prayed for dismissal of the petition.

6.Heard. Record perused.

7.The order dated 07.09.1999 passed by the Commissioner, Multan Division, Multan, reveals that in terms of educational qualifications, ownership of land, influence, and relationship with the deceased Lamberdar, the claim of Syed Ahmad Naeem (petitioner) was held superior to those of all other candidates, however, from the order passed by Member (Judl-II), Board of Revenue, Punjab, dated 29.01.2005, it is seen that the Member Board of

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Revenue observed that the Collector after hearing the parties declined to appoint any of the 23 candidates because in his opinion all of them were after the land of Lumberdari grant and the petitioner was appointed as Lumberdar by the Commissioner keeping in view the law of primogeniture.

From the afore-said order passed by the Member Board of Revenue, Punjab it appears that the order was passed without taking into consideration that the Commissioner, Multan Division in his order while appointing the petitioner as Lumberdar had observed that he has taken into consideration the relevant educational qualification, ownership of land and influence of the petitioner, and relationship with the deceased Lamberdar. Therefore, the order seems to be based on misreading and non-reading of the record wherein the aforesaid aspect of the matter has not been taken into consideration. It would be appropriate that in the given circumstance of the case the matter be remanded to the Member, Board of Revenue, Punjab to decide the same afresh after providing an opportunity of hearing to the petitioner and the others concerned and taking into consideration their contentions and the relevant record.

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8.In view of the above, the orders of the Member Board of Revenue dated 29.01.2005 passed in R.O.R No. 1398/1999 and dated 25.01.2010 in Review Petition No. 205/2005 in R.O.R No.

1398/1999 are set-aside, the matter is remanded to the Member, Board of Revenue, Punjab, where the same shall be deemed to be pending for decision of the same on merits afresh preferably within a period of three months from the date of receipt of order of this Court. With this observation this constitutional petition is allowed.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan