PLJ 2005
Present: Ch. Ijaz Ahmad, J.
JAFFAR HUSSAIN--Petitioner
versus
MEMBER (JUDICIAL-IV) BOARD OF REVENUE, PUNJAB,
W.Ps. Nos. 10449 and 10450 of 2004, decided on 28.6.2004.
(i) Administration of Justice--
----Discretion--Exercise of--Discretion must be exercised judiciously, based on basic principle of fair play. [Pp. 997 & 998] C
PLD 1964 SC 829;
(ii)
Constitution of
----Art. 199--Constitutional petition--Maintainability against remand order--Held: Constitutional petition is not maintainable against the remand order. [P. 998] E
1986 SCMR 251; PLD 1986
PLD 1973
(iii)
Constitution of
----Art. 4--General Clauses Act (X of 1897)--S. 24-A--Public functionaries--Duty of--It is duty and obligation of the public functionaries to act in accordance with law--Public functionaries have to decide the controversy between the parties after proper application of mind. [P. 998] F
PLD 1987 SC 447; 1998 SCMR 2268; 1998 SCMR 2419.
(iv)
----R. 17--Constitution of
[Pp. 997, 998 & 999] A, B, D, G & H
PLD 1964 SC 829; 1968 SCMR 77; PLD 1987 SC 447; 1998 SCMR 2268; 1998 SCMR 2419; PLD 1997 SC 304; PLD 1989 SC 166 and
PLD 1988
Mr. Muhammad Nawaz, Advocate for Petitioners.
Mr. Muhammad Hanif Khatana, Addl. Advocate General, entered appearance on Court's Call.
Date of hearing : 28.6.2004.
Order
I intend to decide the following writ petitions by one consolidated order having similar facts between the same parties inter-dependent upon each other:--
(i) W.P. No. 10449-2004;
(ii) W.P. No. 10450-2004;
2. The brief facts out of which the aforesaid Constitutional petitions arise are that the original Nambardar of the village in-question Muhammad Siddique died. The Collector concerned invited the applications for the appointment of the Nambardar in the village. Seven candidates have submitted their applications, out of which Muhammad Tahir and Muhammad Ihsan contested. Resultantly, the District Collector appointed Muhammad Tahir as Nambardar of the village in-question. Respondent
No. 4 being aggrieved filed appeal before the
Commissioner, who accepted the same vide order dated 18.2.1997 and remanded the
case to the District Collector, Okara, for fresh decision. The District
Collector Okara, after remand invited fresh applications to fill in the post
in-question vide order dated 18.10.1997. Seventeen candidates submitted their
applications but finally six candidates were remained in the field, who
contested their applications to be appointed them in the post in-question. The
District Collector appointed the petitioner as Nambardar of the village vide
order dated 20.12.1999. Respondents Nos. 2, 4 and Muhammad Din being aggrieved
filed three appeals against the appointment of the petitioner in the post
in-question before the Commissioner. Lahore Division,
3. The learned counsel of the petitioners submits that both the tribunals below have concurrently decided in favour of the petitioners upto the level of the Commissioner whereas the Member Board of Revenue Judicial-IV has set aside the same while exercising revisional powers. The Member Board of Revenue Judicial-IV did not find any infirmity or illegality in the impugned orders of the Tribunals below, therefore, the learned Member Board of Revenue Judicial-IV was not justified to set aside the concurrent finding of fact while exercising revisional powers. He further submits that the Member Board of Revenue Judicial-IV has no lawful authority to reverse the concurrent finding of fact on the basis of another view while reappraising the evidence on record. He further submits that both the tribunals below were justified to consider this aspect of the case that there are three posts of Namabardar in the village in-question out of which two Rajputs have already been appointed by the competent authority and this was a relevant consideration to appoint the petitioner as Nambardar against the third post belonging to the Arain Bratheri. He further submits that question of appointment of post in-question of Nambardar is not vested right and this fact was not considered by the Member Board of Revenue Judicial-IV in its true perspective. He further submits that the District Collector has exercised his powers after providing proper hearing to all the candidates and appointed the petitioner, therefore, the Member Board of Revenue Judicial-IV was not justified to interfere in the area of discretion of the District Collector, who has exercised jurisdiction with cogent reasons.
4. Mr. Muhammad Hanif Khatana, Addl. Advocate General, entered appearance on Court's call, he submits that Constitutional petitions are not maintainable.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce Rule 17 of the West Pakistan Land Revenue Rules, 1968 and operative part of the impugned order of the Member Board of Revenue Judicial-IV dated 28.10.2003 to resolve the controversy between the parties:--
"RULE 17: Matters to be considered in first appointment.--In all first appointments of headmen regard shall be had among other matters to--
(a) the hereditary claims of the candidate;
(b) 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 selection of a headman is to be made;
(f) his ability to undergo training in Civil Defence in the case of headman in Tehsils situated alongwith the Border.
OPERATIVE PART OF ORDER:
In view of the above discussed position the Commissioner Lahore Division having dismissed the appeal of the petitioner without any proper appraisal of the factual and the legal position and without any valid grounds, his impugned order is set aside and the case is remanded to the Executive District Officer (Revenue) Okara for fresh decision on the appeal of the petitioner. He shall decide the case after making sure ascertainment about the finding of the District Collector that the disputed post stood reserved for Arain Community. If it is proved otherwise, then the EDO(R) shall decide the case by evaluating the merits of the claims of the respective candidates in terms of the direction laid down under Rule 17 of the Land Revenue Rules 1968. There being an allegation of the respondent being an absentee from the Chak, the EDO(R) shall look into this aspect as well in accordance with law. Muhammad Din and Muhammad Ehsan having been unnecessarily impleaded as respondents in this Revision Petition, no observations required to be made about the merits of their candidatures."
In case the aforesaid provision of law and operative part of the impugned order of the Member Board of Revenue be put in a juxta position then impugned order passed by the Member Board of Revenue is in consonance with the provisions of law. The District Collector has exercised discretion without adverting to the parameters prescribed by the Legislature in its wisdom in Rule 17, therefore, the District Collector was not justified to appoint the petitioners merely on the Bradhery basis unless and until the post in-question is reserved for a particular community by the competent authority, which was not placed on record before the District Collector as well as before the Commissioner. The foundation of the case is missing that is why the Member Board of Revenue has remanded the case to the Executive District Officer Revenue concerned. It is settled principle of law that discretion must be exercised judiciously, based on basic principle of fair play but the District Collector has exercised discretion in violation of the provisions of law, which was upheld by the Commissioner without application of mind and in fact the Commissioner has counter-signed the order of the Collector, therefore, order of the Commissioner is not sustainable in the eye of law as the law laid down by the Honourable Supreme Court in Ghulam Mohy-ud-Din's case (PLD 1964 S.C. 829). The Member Board of Revenue was justified to remand the case to the Collector with cogent reasons as the law laid down by the Honourable Supreme Court in Risaldar Abdul Majid Khan vs. Captain Daood Khan and another (1968 SCMR 77). The relevant observation is as follows:--
"The matter was one within the jurisdiction of the learned Member, Board of Revenue and he seems to have exercised his discretion properly after consideration of all the facts and circumstances of the case."
It is settled principle of law that Constitutional petition is not maintainable against the remand order as the law laid down by the superior Courts in the following judgments:--
Muhammad Ilyas Khan vs. Muhammad and others (1986 SCMR 251);
Ghulam Rasul and others vs. Khudai Dad & others (PLD 1986 Quetta 130);
Ramzan vs. Rehabilitation Commissioner Sargodha (PLD 1963 Lahore 461);
Mst. Kaniz Fatima & 3 others vs. Member Board of Revenue, (PLD 1973 Lahore 495);
It is also settled principle of law that Constitutional petition is discretionary in character where the substantial justice has been done between the parties, then this Court can refuse this discretion in favour of the petitioner, who wants benefits of an order, which is not in consonance with Article 4 of the Constitution read with Rule 17 of the West Pakistan Land Revenue Rules, 1968. It is duty and obligation of the public functionaries to act in accordance with law in view of Article 4 of the Constitution as the law laid down by the Honourable Supreme Court in Utility Corporation's case (PLD 1987 SC 447). Even otherwise, after addition of Section 24-A in the General Clauses Act, which is procedural in nature and has retrospective effect according to which public functionaries have to decide the controversy between the parties after proper application of mind as the law laid down by the Honourable Supreme Court in the following judgments:--
M/s. Airport Support Service vs. The Airport Manager,
Zain Yar Khan vs. The Chief Engineer CRBC WAPDA etc. (1998 S.C.M.R. 2419).
Coupled with the fact that the order was passed by the Member Board of Revenue on 28.10.2003. The petitioner has filed Constitutional Petition
No. 10449-2004 on 26.6.2004. Similarly, Member Board of Revenue has passed the impugned order on 13.4.2004 against the petitioner against which the petitioner has filed Constitutional Petition No. 10450-2004 on 26.6.2004, which are liable to be dismissed on the well known principle of laches as the law laid down by the Honourable Supreme Court in Khiali Khan vs. Haji Nazir and 4 others (PLD 1997 SC 304). As mentioned above, petitioners did not file the Constitutional petition immediately, therefore, I am not inclined to exercise my discretion in favour of the petitioners as the law laid down by the Honourable Supreme Court and the Full Bench of this Court in the following judgments:--
Federation of
Khawaja Muhammad Sharif vs. Federation of
In view of what has been discussed above, these Constitutional petitions have no merit, therefore, the same are dismissed.
(M.A.R.) Petitions dismissed.