PLJ 2024 Lahore (Note) 45
Present: Ch. Muhammad Iqbal, J.
versus
MEMBER BOARD OF REVENUE (Judicial-II) Lahore etc.--Respondents
W.P. No. 40588 of 2022, heard on 20.12.2022.
West Pakistan Land Revenue Rules, 1968--
----R. 6-A--Constitution of Pakistan, 1973, Art. 199--Death of permanent Lambardar--Appointment of --Appeal--Accepted--Matter was remanded--Validity--Maintainability--Member, Board of Revenue, had merely remanded matter to Deputy Commissioner and had not finally decided issue on merits, as such, against remand order ordinarily writ petitions were not maintainable--Counsel for petitioner had not pointed out any illegality or material irregularity in impugned remand order and had also not identified any jurisdictional defect--Petition dismissed. [Para 7 & 8] A & B
2018 SCMR 1177, 1986 SCMR 251, PLD 1963 (W.P.) Lahore 461,
2007 CLC 768, 2010 CLC 1921 ref.
Mr. Sameer Ijaz, Adeela Mustafa Mian & Adeel Ahmed Chaudhary, Advocates for Petitioner.
Mr. Gohar Nawaz Sindhu, Addl. Advocate General along-with Najeeb Ullah, Tehsildar Sharqpur for Respondents.
Date of hearing: 20.12.2022.
Judgment
Through this Single judgment, I intend to decide the titled Writ Petition as well as Writ Petition [No. 31709 of 2022] as common questions of law and facts are involved in both petitions.
2. Through Writ Petition No. 40588/2022, the petitioner has only challenged the validity of orders dated 02.11.2021 and 20.05.2021 passed by the Commissioner, Lahore Division, Lahore as well as Member, (Judicial-II), Board of Revenue, Punjab respectively to the extent of remand of the case.
3. Through Writ Petition No. 31709 of 2022, the petitioner has challenged the vires of order dated 20.05.2022 passed by the Member (Judicial-II), Board of Revenue, Punjab who disposed of ROR
No. 2419/2021 filed by the petitioner, set aside the remand order dated 02.11.2021 passed by the Commissioner, Lahore Division, Lahore and rest of the findings were upheld.
4. Brief facts of these cases as narrated by the learned counsel for the petitioners are that Ghulam Rasool brother of Respondent
No. 5 Basharat Hussain was permanent Lumberdar of Chak No. 15/UCC who died leaving behind two sons namely Ahmad and Farooq. The District Collector, invited applications to fill up the vacant post and after receiving the report from the revenue field staff as well as Assistant Commissioner, the District Collector vide order dated 03.03.2021 appointed Respondent No. 5 Basharat Hussain as permanent Lumberdar of the said Chak. (sic) order, petitioner filed an appeal, which was accepted by the Commissioner Lahore Division vide order dated 02.11.2021, set aside the order dated 03.03.2021 of the District Collector, Sheikhupura and remanded the matter to him to call afresh the applications from the interested candidates, after making wide publicity through Mushtari Munadi, hold General Meeting (Jalsa-e-Aam) in the revenue estate and appoint a best suitable person having good integrity in the light of policy /notification No. 881-2010/397-LR-II dated 20.04.2010 issued by the Board of Revenue, Punjab. Petitioners in both writ petitions assailed the said order through ROR Nos. 2315 & 2419 of 2021 which were disposed of by the Member, (Judicial-II). Board of Revenue, Punjab who vide order dated 20.05.2022, set aside order dated 02.11.2021 passed by the Commissioner, Lahore Division, Lahore and remanded the case to the District Collector for decision afresh to invite fresh applications from the desirous candidates of Chak No. 15/UCC, Tehsil Sharaqpur, District Sheikhupura on merits as per law. The order of ROR was assailed by the petitioners in both cases through these writ petitions.
5. I have heard the arguments of the learned counsel for the petitioners as well as learned law officer at full length and gone through the record with their able assistance.
6. The Member, Board of Revenue, Punjab after hearing both the parties came to the conclusion that the codal formalities as per requirement of Rule 6-A of the Land Revenue Rules, 1968 have not been properly fulfilled by the Commissioner, Lahore and remanded the matter to the District Collector for decision afresh. For ready reference, operative part of order dated 20.05.2022 to reproduced as under:--
“5. Arguments advanced on behalf of both parties have been heard and considered. Record/ documents attached with the case file has also been perused including orders of the Courts below minutely. The District Collector, Sheikhupura while appointing Basharat Hussain s/o Anayat Hussain as lambardar of chak No. 15/UCC, Tehsil Sharaqpur did not follow the prescribed procedure for the appointment of lambardar on 03.03.2021, who passed the same in haste against the factual position. As per the previous CNIC of Basharat Hussain his address was of District Gujranwala and after this to obtain the post of lambardar he got changed the address of his residence which is of Tehsil Sharaqpur, District Sheikhupura. Basharat Hussain was not owner of land at the time of filing of application for the post of lambardar, meaning thereby he was not owner of land in the concerned estate. These crucial aspects were ignored by the District Collector, Sheikhupura while passing the order dated 03.03.2021. The Commissioner, Lahore Division, Lahore has rightly interfered into the order of District Collector, Sheikhupura dated 03.03.2021 vide his justified and valid order dated 02.11.2021. The Commissioner, Lahore Division, Lahore only violated Rule 6-A of the Land Revenue Rules, 1968 by remanding the case to District Collector for decision afresh for which he was not competent to do so under the Rule ibid as it is only the prerogative of Board of Revenue, Punjab. The order dated 02.11.2021 of Commissioner, Lahore Division, Lahore to the extent of remand is hereby set aside and rest of the findings are upheld. The case is remanded to the Deputy Commissioner/ District Collector, Sheikhupura for the appointment of lambardar afresh who is directed to invite fresh applications from the desirous candidates of Chak No. 15/UCC, Tehsil Sharaqpur, District Sheikhupura and appoint a suitable candidate for the said post by observing all procedural/ codal formalities applicable on the subject. The new appointment of lambardar shall be made purely on merits. With these remarks, the revision petitions are disposed of. Status quo granted in the cases on 01.12.2021 and extended from date to date is vacated as such. Files be consigned to record room after due course of law.”
7. Even otherwise, the Member (Judicial-II), Board of Revenue, Punjab through the impugned order dated 20.5.2022 has merely remanded the matter to the Deputy Commissioner/ District Collector, Sheikhupura and has not finally decided the issue on merits, as such, against the remand order ordinarily writ petitions are not maintainable. The Hon’ble Supreme Court of Pakistan in a case titled as Allah Ditta & Others vs. Member (Judicial), Board of Revenue & others (2018 SCMR 1177) has held as under:
“6. Order of remand is not a final order and simply sends the matter for re-examination for the second time. It does not finally determine the claim or the rights of the parties. The forum to which the case is sent for fresh decision is free to re-examine the case and pass a fresh judgment. Against any such subsequent decision or judgment, alternate remedy is available to the parties. Further, Board of Revenue is the highest Court of appeal and revision in revenue cases and is a controlling authority in all matters connected with the administration of land, collection of land revenue, preparation of land record and other matters (See section 5 of the Board of Revenue Act, 1957). In this background the Courts after having judicially examined the remand order passed by the Board of Revenue have expressed reluctance to interfere and for these reasons have maintained that order of remand would not be amenable to writ jurisdiction (see Ramzan v. Rehabilitation Commissioner (Legal) Sargodha (PLD 1963 Lahore 461), Kaniz Fatima v. Board of Revenue (PLD 1973 Lahore 495) and Ghulam Rasool v. Khudai Dad (PLD 1986 Quetta 130). This is not an absolute rule. An order of remand that is facially perverse or without jurisdiction or otherwise void can be interfered with, like any other order (see Ghulam Rasool (supra)). The constitutional power to judicially review an order of remand passed by the Board of Revenue is not in any manner curtailed or abridged by the precedents cited above. Infact, the principle that emerges from the wisdom of the precedents is that, for reasons narrated above, the constitutional Court must approach and examine a remand order passed by the Board of Revenue with care and circumspection, so as to sparingly interfere with it, unless of course, the remand order is facially perverse, without jurisdiction or otherwise void. Amenability of writ jurisdiction against a remand order is in this context and subject to above conditions.”
Reliance can also be placed on the cases titled as Muhammad Ilyas Khan vs. Muhammad & others (1986 SCMR 251), Ramzan vs. Rehabilitation Commissioner (Legal) Sargodha & another (PLD 1963 (W.P.) Lahore 461), Akbar Ali & 18 others vs. Mukhtar Ahmad & 14 others (2007 CLC 768) & Ghulam Ahmad vs. Member Board of Revenue, Punjab, Lahore & others (2010 CLC 1921).
8. Learned counsel for the petitioner has not pointed out any illegality or material irregularity in the impugned remand order passed by the Member Board of Revenue, Punjab and has also not identified any jurisdictional defect.
9. For the foregoing reasons, these writ petitions are dismissed being not maintainable as well as devoid of any merits. However, the Deputy Commissioner/ District Collector, Sheikhupura is directed to decide the matter in terms of order passed by the Member Board of Revenue, Punjab as early as possible.
(Y.A.) Petition dismissed
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