PLJ 1991 SG 331
[Appellate Jurisdiction]
Present: dr. nasim hasan shah, shafiur rahman and abdul qadeer
CHAUDIIRI JJ.
Haji NOORWAR JAN--Appellant versus
SENIOR MEMBER, BOARD
OF REVENUE, NWFP
others-Respondents
Civil Appeals Nos. 10 of 1986, 458 of 1987 and 28 of 1988, decided on 4.3.1991.
[From judgment of Peshawar High Court, dated 2.12.1985, passed in W.P. No.280 of 1983, and from judgment of Lahore High Court, Multan Bench, dated 28.10.1987, passed in W.P. Nos. 1181 and 744 of 1986 respectively].
Lambardar—
—Lanibardar--Appoinlmcnt of~Procedure for-In first appeal, Commissioner was under a mistaken impression that it was not a case of creation of Lambardari but of revival of Lambardari which had been put in abeyance—In second appeal, Member, Board of Revenue has laid down a broad proposition of law that no right of primogeniture would be available to respondent since his father was removed from office-It amounts to re-writing of rule-On third appeal, by making observation that "in case of minor, choice has to be made from amongst other eligible candidates", entire principle of primogeniture has been ignored-Held: Board of Revenue being at apex of revenue heirarchy, is charged with statutory duty of interpreting law and any error on its part must be corrected in Constitutional jurisdiction-Civil Appeal No.10 of 1986 dismissed and other two appeals remanded for fresh decision.[P.336,337&338]A,B)C,D&E
PLD 1973 SC 24 rel.
Mr. Abdul Hakim Kundi, Advocate, Supreme Court, and Mr. Jan Muhammad
KJtan, AOR (absent) for Appellant (in CA 10/86).
Ch. Muhammad Ashraf Wallah, Advocate, Supreme Court, and Mr.
Mahmood A. Qureshi, AOR (absent) for Appellants (in CA. 458/87 and
28/88).
Nemo for Respondents 1 & 4 (in CA. 10/86).
Mian Shakirullah Jan, AOR (absent) for Respondent No.5 (in C.A. 10/86). Respondent No.l (in C.A. 458/87) and Nos. 1,2,3,5 and 6 (in CA. 28/88): Exparte.
Ch. Mehdi KJian Mehtab, AOR (absent) for Respondent No.2 (in CA.
458/87).
Mr. Muhammad Akram Sheikh,
Advocate, Supreme
Court, and
Qamantddin Klian, Meo, AOR (absent) for Repondent No.4 (in CA.
28/88*.
Date of-hearing: 4.3.1991.
judgment
Shafi-ur-Rehman, J.--These three appeals raise a common question of law, namely, the powers of the High Court while exercising constitutional jurisdiction under Article 199 of the Constitution to interfere in the appointment of Lamhardars.
2.
In Civil Appeal No. 10 of 1986, the facts are
that till the year 1922, there were four Lambardars in village Doaba, Tehsil
Hangu, District Kohat, the village having been divided into four Kandis. In
1922, the Lambardari of one of Kandis of Yousaf Khel was
abolished with the sanction of the Commissioner and merged with that of
adjoining Kandi - Khara Khel. Arsala Khan, the grandfather of Habib Khan/the writ
petitioner, became thereby the Lambardar of Kandi Yousaf Khel as well.
Arsala Khan was succeeded by Muzaffar Khan and Muzaffar Khan by Habib Khan. The rule of
hereditary succession was observed. In the year 1979, the appellant Haji Noorwar
Jan of Kandi Yousaf Khel applied for recreation of the separate Lambardari
of Kandi Yousaf Khel. The statements of the villagers were recorded. The matter
was sent up to the ommissioner for
permitting the creation of
the post of a Lambardar for Kandi Yousaf Khel. The Commissioner, somehow was of the view that it was not a case of reation of a new post of Lambardar but of revival of an existing post which was kept in abeyance or temporarily merged with that of Kandi Khara Khel.
The atter as again examined in the Collector's Office and the view taken by the subordinates
of Collector was that as the abolition had taken place with the permission of
the Commissioner, it was a case of
creation of a post and not revival of a post already existing. It was suggested
that reference be made again to the Commissioner. The Collector, however, thought otherwise and acting on
the suggestion of the Commissioner,
proceeded to deal with the case as if it was a revival of the lambardari already in existence and made the appointment of the appellant on 20.4.1980.
3.
Against this order, an appeal was filed and also a review
application before the Collector. While the appeal was pending, the Collector reviewed
his own
order appointing the appellant as Lambardar and set it aside on
15.3.1981. The appellant appealed to the Commissioner and succeeded on the ground
that during
the pendency of an appeal, review could not be entertained and decided. The Board of Revenue,
by its order dated 20.2.1982 upheld the legal view taken by the Commissioner. A
Constitution Petition was in the first instance filed by Malik -' Faqir Khan who was
then acting as a. Sarbrah Lambardar for Habib Khan. He ultimately
withdrew that Constitution Petition on 29.8.1983 with permission to refile. It was Habib
Khan who filed the Writ Petition and succeeded in the High Court on the short
ground that he was entitled to hearing before the appointment of the appellant as Lambardar
which had the effect of curtailing the area of Habib Khan respondent
No.5/writ petitioner. The impugned order of the High Court on the subject is brief
one and is reproduced hereunder:-
"Amir Sher Ali, District Qannungo, Kohat stated that at the time of appointment of respondent No.5, no notice whatsoever was issued to the Petitioner and the file does not show that the Petitioner was aware of the procedure adopted by the Revenue Authorities on the appointment of the Lambardar.In view of the above this Petition is accepted and the authoritiesconcerned are directed to act strictly in accordance with Law after dueadvertisement of the post in the local press"
4. In Civil
Appeal No.458 of 1987, one Sohanra
was the permanentLamb'ardar of village Wahi
Qa/i Abdul Khair, Tehsil Lodhran, District Multan.He transferred his entire land in favour of his
sons, thereby himself becominglandless.
Patwari submitted a report dated 18.7.1982 that on the ground ofbecoming landless, he was liable to be removed
from Lambardari. The Qanungoin
his report dated 10.8.1982 observed that apart from being landless, he was
alsoold and a frequent defaulter. The matter went to the Collector, who by an
order dated 11.10.1982 ordered the
removal of Sohanra from lambardari and that order was not contested. However, thereafter, the
question of appointment of his
successor was taken up and the contest
ultimately centred round Younis, the appellant,
and Elahi Bakhsh, respondent No.2/the eldest son of Sohanra, theremoved lambardar.
The Assistant Commissioner/Collector took it to be anappointment under Rule 17 of the West Pakistan
Land Revenue Rules, 1968 and decided
it as hereunden-
This case is being basically dealt with under Rule 17, Land Revenue Rules, 1968. While Ilahi Bakhsh has a claim on the hereditary grounds, the other factors tilt the balance in favour of unus, specially so because overwhelming majority of land owners belong to his caste and clan. Under these circumstances, I feel that Muhammad Yunus is the most ;
suitable candidate for the post of Lambardari in this Patti. He isaccordingly appointed under Rule 17 of Land Revenue Rules, 1968".5. The matter was taken up in appeal to the Commissioner and he on thequestion of law reversed the order of the Assistant Commissioner/Collector by observing as hcreunder:- have heard the arguments advanced by both the parties and seen therecord of the case. Removal-was not under any offence or inefficiencyHe was removed because he had become landless. It is not adisqualification and heirs cannot be ignored. Rule 19(2) will apply in thicase. The appellant is the eldest son of the lambardai. No disqualificationis attached to himThe appeal is accepted and the impugned order is set aside. Under Rule 19(2) the eldest son of the deceased lambardar Ilahi Bakhsh is appointed as lambardar".6. he matter was then taken to the Board of Revenue which on the legal plane took the same view as was taken by the Assistant Commissioner/Collector, by observing as hereunder:-
"On this issue, I would accept the contention of the learned counsel for the appellant that no rights of primogeniture would be available to the respondent since his father was removed from the office. It has been my consistent view that when an incumbent is removed from office of lambardar, he becomes Junctus officio and has no primogeniture right to pass though his heir successor would not be ordinarily debarred from contesting the office. I have, therefore, to disagree with the learnedCommissioner that right of primogeniture would devolve on the respondent. Since the appellant Muhammad Younus has better merit, as held by the Collector, I would set aside the orders of the learned Commissioner and restore the orders of the AC/Collector appointing Muhammad Younus as successor Lambardar".
7. The mailer was ultimately brought to the High Court where a learned Judge disposed it of. by observing as hcreunden- "The discretion exercisable within the frame-work of statutory rules in the appointment of the Lambardar docs not operate in bar of constitutional jurisdiction. If the law and the rules are shown to have not been properly construed and applied and if a tribunal makes an error of law in deciding a matter the same can be quashed under writ jurisdiction being in excess of law. This view finds strong support from judgment reported as "P.L.D. 1987 S.C'. 447". In view of my above findings that the West Pakistan Land Revenue Rules, 1968 have hot been legally construed and correctly applied, the case law relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of this case and the said judgments are clearly distinguishable from the facts of this case.The learned Judge in the High Court sel aside the order of the learned Member, Board of Revenue dated 27.7.1986 and restored the Order passed by the Commissioner dated 3.3.1986.
8. In Civil Appeal No.28 of 1988, a permanent Lambardar of Chak No.l19/l3AL, Tehsil Chichawatni, District Sahiwal died on 19.11.1983. The appointment of his successor was taken up. The appellant, who had rendered meritorious services in the Army preferred a claim against the minor son of the deceased Lambardar, before the Assistant Commissioner/Collector. The Assistant Commissioner/Collector vide order dated 19.8.1984 appointed the appellant as Lambardar. On appeal by the minor, the Commissioner set aside the order of Assistant Commissioner/Collector appointing the appellant as Lambardar and instead appointed the minor observing as hereunder:-
"The estate is chiefly owned by the private owners and the deceased was a permanent lambardar. This case will be decided under Rule 19(2). Under this rule the law of primogeniture will apply. The line of descendant has to be exhausted before an outsider can be considered. The appellant is the eldest son of the deceased lambardar. He has enough holding in the estate to cover ZAR-E-BHRAT. The only disqualification attached to him is his age. He is a minor. Under the Rules being a minor is no disqualification. A number of case law can be cited where minor was appointed as lambardar. Under the instructions, a Sarbrah can be appointed in case lambardar cannot perform his duties. Such a contingency is meant for situations like this.
The appellant has an over-riding claim as successor to the deceased lambardar. Appeal is. therefore, accepted. The impugned order is set aside and the appellant is appointed as lambardar in place of his deceased father Wajid Ali Khan".9. The matter was taken to the Board of Revenue who took the followingview of the malter:-"On this point, 1 would, follow the ruling of the Lahore High Court that the preference on ground of primogeniture is only directory and cannot operate to the exclusion of other considerations. Since the purpose of appointing a lambardar is to secure the services of the best available candidate to discharge the mandatory functions and against the landowners, obviously such purpose would not be fulfilled by appointing a minor who will have to operate through a Sarbrah which may npt be as qualified as other available candidates. The conclusion which follows is that in case of a minor, the choice has to be made from amongst other eligible candidates".
10. A Review Petition was filed by the minor which was disposed of by the same learned Member, Board of Revenue on 7.5.1986 upholding the previous decision by bserving as hereunder:-
"I have considered the arguments addressed by the learned counsel for the petitioner but would find them without any substance. As regards the contention that the petitioner had no holding in the village, the learned counsel has not tendered any proof in support thereof. On the point that a case was registered against the respondent, the learned counsel concedes that there was no conviction. Concerning the issue of primogeniture, suffice to observe that this is adequately discussed in the impugned judgment and the orders of this court cannot now be reopened on this point in review. This review petition is accordingly dismissed in limine".
11. It was thereafter that the Constitutional jurisdiction of the High Court was invoked in the mailer by the minor. The learned Judge in the High Court held that rule ll> of the Land Revenue Rules governed the appointment, and granted relief in the following words:- "In view of the foregoing discussion I hold that the petitioner has a superior entitlement for appointment as Lambardar. Accordingly I accept the writ petition and declare the impugned order dated 7.5.1986 passed by the Member, Board of Revenue to be without lawful authority and of no legal effect which is hereby quashed and that of the Commissioner dated 3.11.1985 is restored, which conforms to the provisions of rule 19 ibid. There will, however, be no order as to costs".
12. In all these appeals, the leave granting Order as well as the arguments addressed by the learned counsel representing the appellants point out to a number of decisions of this Court where it has been held that the appointment of a Lambardar is purely an administrative function, that no particular person has a vested right to be appointed as a Lambardar, that the selection cannot be made by the courts in exercise of their constitutional jurisdiction nor can the discharge of such administrative duties hampered or impeaded by Courts' intervention. In the context reference has been made to Abdul Wahid v the Member, Board of Revenue. Punjab, Lahore and another (1971 S.C.M.R. 719), Muhammad Shaffi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (1972S.C.M.R. 253), Muhammad Warravam v. Member, Board of Revenue, Punjab, Lahore and 3 others (1972 S.C.M.R. 354), Ghulam Hussain v. Ghulam Muhammad and another (1976 S.C.M.R. 75) and Sltaraf Din v. Qazi Abdul Jalil and another (1986 S.C.M.R. 1368). On the strength of these decisions it is contended that the intervention by the High Court on technical grounds of the applicability of the Rules or their interpretation when the Rules themselves were directory in nature could not be sustained.
13.
In reply to these contentions of the appellants, the
learned counsel representing the respondent has contended that the right of a citizen to
be governed
by law has been ensured. Even in discretionary and administrative fields the law and its
purposes had to be kept in view. The administrative discretion and the ower does not extend to empower the
authorities to rewrite the law of their own choice, to understand it the way they
like and to lay down the law for subordinates and ose in the lower hierarchy in an arbitrary
manner and on an erroneous understanding of the law. For this, reference has been made to
Utility Stores Corporation of Pakistan Limited v.
"While addressing the Commissioner, for according sanction to create the post of Lambardar, it has been mentioned that at the time of abolition of post of Lambardari under reference Commissioner (the then Rev: Commissioner) sanction was sought and the confirmation of the order passed by the Collector on the file was obtained".
15. Rule 16 of the Land Revenue Rules provides as hcreunder:-
"16. Number of headmen.--A. sufficient number of headmen shall be appointed to every estate, and this number when once fixed shall not be increased except by or under the order of the Commissioner".
16. The Commissioner was under a mistaken impression that it was not a case o creation of a lambanlari but of revival of lambardari which had been put in beyance. Had he been aware of the fact that it was a case of creation of Itimbarduri notices would have issued and an enquiry would have taken place with regard to I he need of it when nothing on the record shows that any requirement of revenue administration as such called for the recreation of an abolished lambardari. 1 here was not only, therefore, a legal error but jurisdictional one in filling up a vacancy which did not exist and appointing to a post which was not created y the competent authority.
17. In the second
appeal (Civil Appeal No.458/87), a broad proposition of law has been laid
down by the learned Member, Board of Revenue in his impugned order and it
is that "no rights of primogeniture would be available to the respondent
since his father was removed from the office". It goes on to say that it has been his
consistent practice. Such a broad proposition, as was laid down by the learned Member,
Board of Revenue for a precedent for his subordinates makes non-existent
and irrelevant the formal rules contained in clause (b) of sub- rule (2) of rule 19
of the Land Revenue Rules. It amounts to re-writing the rule. Confronted with this
conflict between the formally framed rules and the judgment of the Member, Board
of Revenue in individual cases, completely negating it, the subordinates in the
hierarchy would be totally confused. In this case also the error is of law and
is apparent on the face of the record.
18. Similarly in the third case (Civil
Appeal No.28 of 1988), by making the broad
observation that "in case of a minor, the choice has to be made from amongst other eligible -candidates", the
entire principle of primogeniture has been ignored and the rule applicable over-ridden and that too while deciding
an individual case.
19. The Board of Revenue
at the apex of the Revenue hierarchy is charged with the statutory duty of
interpreting the law, of applying it to individual cases coming up before it
and laying down the. law for the subordinates in the hierarchy to follow. Any
error on its part in understanding the law, in applying it or in laying down the law can and
must be corrected in the constitutional jurisdiclion. If it is left- uncorrected,
it will result in subverting the rule of law. It is in this context that Ammon Rubinstein in
Chapter V of his book 'Jurisdiction and Illegality' under the heading
"Supervision over 'the Observance of the law in the Course of the Exercise of
Jurisdiction'" observes as hereunder:-
"Certiorari is a writ which 'extends to the whole of the record'. As long as it is supportable by the record, any defect, irregularity, or error which, in the opinion of the supervisory court is substantial, will enable the court to issue certiorari. Where the error is not substantial, the courts may feel less inclined to intervene. Their reluctance can be expressed either by invoking the discretionary nature of the remedy, by treating an error of law as an error of fact or by limiting the meaning of 'record'. These same expedients may be resorted to where the decision sought to be quashed is appealable under statutory provisions. Nevertheless, where the court wills it, it has authority to correct 'all irregularities in the proceedings of inferior tribunals'. In exercising this authority the Court is only circumscribed by the existence and contents of a record.
What is generally meant by recurring assertions that certiorari cannot serve as means of appellate proceedings is that the supervisory Court cannot(/) go behind the record; (/'/) vary or alter the decision impugned (it can only affirm or quash it);(/'/"/) admit extrinsic evidence or hear any further evidence unless relating to a jurisdictional matter;
(iv) weigh the evidence or otherwise interfere with findings of fact.Within these limits, the supervisory court may exercise a semi-appellate power of review which is aimed at remedying errors committed within jurisdiction. It is this* intra-jurisdictional review which renders certiorari the useful remedy it is: 'It must be apparent to anyone that if the superior court could only examine into the right of the inferior one to enter upon an inquiry, without reference to the manner in which that inquiry is conducted, this remedy would be of small account'. It was this recognition which led, in some American States, to a better appreciation of the nature of certiorari; in the State of New York it had the effect of turning certiorari into an almost complete means Jf appeal".
20. The above observations have to be read with one
qualification pointed out by this
Court in Rahim Shah v. The Chief Election Commissioner of
"It may be further observed that
although the conditions for grant of certiorari which obtain in English Courts do not
apply to High Courts in
21. In view of the discussion above, Civil Appeal No.10 of 1986 is dismissed, but the other two appeals (Civil Appeals No.458/1987 and 28/1988) are partly allowed in so far as after declaring the order of Member, Board of Revenue to be illegal and without lawful authority the High Court has blessed with finality the order of the Commissioner, which it could not do. As pointed out, the selection of the lambardar is the executive responsibility of the Revenue Officers with the Board of Revenue at the apex. After the error of law in the judgment of the Member, Board of Revenue has been corrected, it will be for the Board of Revenue to decide afresh the revisions brought before it in accordance with the law. Hence, these two appeals (CA. No.458/87 and 28/88) are remanded to the Board of Revenue for decision afresh.
(MBC) (Approved for reporting) Orders accordingly.