Allowed

Umed Singh v. Financial Commissioner, & Ors.

Punjab & Haryana HC2 Jan 2012CWP/10483/2010

Case brief

AI extract

What is this about?

This writ petition challenged the appointment of Lambardar. The collector appointed the petitioner, but appellate authorities set it aside in favor of another candidate. This court quashed the appellate orders, finding them perverse and lacking cogent reasoning regarding the petitioner's residence and suitability. The Collector's order was restored.

What did the court decide?

The impugned orders of the Divisional Commissioner and Financial Commissioner were set aside, and the order appointing the petitioner as Lambardar passed by the Collector was restored.

Umed Singh Vs Financial Commissioner… — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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CWP No.10483 of 2010

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.10483 of 2010 Date of Decision: January 02, 2012

Umed Singh

…..Petitioner

Versus

Financial Commissioner, Haryana and others

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….Respondents

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CORAM: HON’BLE MR. JUSTICE PARAMJEET SINGH

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Present: Mr. P.R. Yadav, Advocate for the petitioner.

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Mr. Sandeep S. Mann, Sr. DAG, Haryana for respondents No.1 to 3.

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Mr. Vivek Khatri, Advocate for respondent No.4.

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Paramjeet Singh, J

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Petitioner Umed Singh has filed the present writ petition under Articles 226/227 of the Constitution of India for quashing of orders dated 28.08.2008 (Annexure P-3) passed by Divisional Commissioner, Gurgaon Division, Gurgaon and 22.04.2010 (Annexure P-5) passed by Financial Commissioner, Haryana whereby order dated 20.09.2005 (Annexure P-1), appointing petitioner as Lambardar has been set aside.

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The brief facts of the case are that on the demise of Tula Ram, Lambardar of Village Bitori, Tehsil and District Rewari, post of Lambardar fell vacant. The Assistant Collector IInd Grade, Rewari initiated the proceedings for filling up the said post after getting approval from the Collector. Munadi/proclamation was got conducted in the village by the Assistant Collector IInd Grade. In pursuant to the proclamation S/Sh.

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CWP No.10483 of 2010

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Rangrao, Murari Lal, Hakikat Ram, Umed Singh and Bal Kishan residents of Village Bitori submitted their applications for the said post within stipulated period. During the course of the proceedings, Bal Kishan was proceeded against ex parte. The conduct and antecedents of the remaining candidates were got verified from the local police which were found in order. One of the candidates Rangrao withdrew his name. After considering the candidatures of other applicants, Assistant Collector IInd Grade, Rewari recommended the name of Murari Lal and forwarded his case to the SubDivisional Officer (Civil), Rewari, who concurred with the Asstt. Collector IInd Grade and recommended the name of Murari Lal for the post of Lambardar and sent it to the Collector. The learned Collector after appreciating the merits of the respective candidates appointed Umed Singhpetitioner as Lambardar of Village Bitori, Tehsil and District Rewari and observed as under:

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“…After hearing all the candidates properly and after perusal of the file , I have come to the conclusion that candidate Murari Lal resides at Rewari and he remain absent from the village. His name is entered in the voter list of Rewari. It is necessary for a Lambardar to reside in the village. Candidate Hakikat Ram is 10^th Class pass whereas Umed Singh is B.A. pass. Umed Singh is having more agricultural land. Therefore, considering Umed Singh son of Uttam Singh as better candidate for the post of Lambardar, he is appointed as Lambardar of Village Bitori in place of deceased Lambardar Tula Ram. Copy of order be sent to Tehsildar Rewari…”

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CWP No.10483 of 2010

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Respondent Murari Lal being aggrieved against the order of Collector dated 20.09.2005 (Annexure P-1) preferred an appeal before the Divisional Commissioner, Gurgaon. The Divisional Commissioner, Gurgaon set aside the order of Collector dated 20.09.2005 (Annexure P-1) vide his order dated 28.08.2008 (Annexure P-3). Petitioner-Umed Singh preferred an appeal before the Financial Commissioner against the order of Divisional Commissioner that too had been dismissed vide order dated 22.04.2010 (Annexure P-5). Hence, this writ petition.

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I have heard learned counsel for the parties and have perused the record as well as the orders of learned Collector, Commissioner and Financial Commissioner.

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A reference to the relevant Rule 15 of The Punjab Land Revenue Rules as applicable in the State of Haryana (‘Rules’- for short) for appointment of Village Headman, would be beneficial to decide the controversy. The said rule reads as under:-

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“15 Matters to be considered in first appointments- In all

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first appointments of headman, regard shall be had among other matters to-

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(a) his hereditary claims;

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(b) extent of property in the estate possessed by the candidate;

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(d) his personal influence, character, ability and freedom from indebtedness;

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(e) the strength and importance of the community from which selection of a headman is to be made;

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(f) services rendered by himself or by his family in the national movements to secure freedom of India.

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CWP No.10483 of 2010

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[In case of an ex-headman of an estate or sub-division thereof in the territory now comprising the State of [Haryana] who had resigned or was dismissed on account of his participation in a national movement before partition and another headman was appointed in his place, the present incumbent of the post shall be removed irrespective of the provisions of rule 16 and the exheadman would be appointed in his place if he has not rendered himself unfit for appointment for any of the reasons given in Rule 16 except imprisonment for a political offence before 15^th August, 1947. In case the exheadman is no longer alive, a person of his family who would under the Rules have been entitled to be headmen if the resignation or dismissal had not intervened, would be appointed as headman. But when no such person exist there would be no need to remove the existing Lambardar] (g) services rendered by himself to the community and development programmes;

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(h) he shall be not less than 21 years of age at the time of inviting the application for the appointment of Lambardar;

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(i) he should be literate, preferably middle pass.]”

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A perusal of the above Rule 15 of the Rules shows that in first appointment of Headman i.e. Lambardar regards shall be had among others to hereditary claims.

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CWP No.10483 of 2010

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Learned counsel for the petitioner contended that Umed Singh is a permanent resident of Village Bitori, and 53 years of age, and having an B.A. Degree, besides 6 acres of land in the village. He has good relations with the villagers and his candidature has also been supported by the Sarpanch, Lambardar and respectable of the village. Besides this, he belongs to the Patti of the deceased Lambardar and is also nearer to the deceased Lambardar. It is further submitted by the learned counsel for the petitioner that Murari Lal resides in Rewari City and his name appears in the voter-list of Rewari City. He is an absentee person from the village and also more than 60 years of age and having less land than the petitioner. He further contended that the choice of the Collector is final and cannot be set aside. The Collector has compared the merits of the candidates and thereafter appointed the petitioner.

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Learned counsel for the petitioner further contended that the Divisional Commissioner and the Financial Commissioner have no jurisdiction to interfere in the choice of the Collector. They can only interfere, if the order passed by the Collector is perverse. In support of his arguments, learned counsel for the petitioner has placed reliance upon judgments in case of Mahavir Singh Vs. Khiali Ram & others, 2009(3) SCC-439, Lila Ram Vs. Asa Ram, 1995 Lahore Law Times-29 as well as judgment of Division Bench of this Court in case of Phool Kumar Vs. State of Haryana and others, 2010(2) RCR (Civil) 819.

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Learned counsel appearing for respondent No.4 vehemently argued that the orders of the Divisional Commissioner and the Financial Commissioner are legal and valid and they have recorded finding after appreciating the facts and evidence on record. Murari Lal is a B.A. B.Ed.

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CWP No.10483 of 2010

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and retired as a teacher and is 60 years of age. He has been helping in family planning scheme and motivated the villagers for depositing money in Small Saving Scheme. He himself deposited Rs.1,00,000/- in the small saving scheme. Besides above, Naib Tehsildar and Sub-Divisional Officer (Civil), Rewari have recommended his name.

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After considering the rival contentions of the parties, I am of the considered view that the choice of the Collector cannot be set aside lightly. This view has been affirmed by the Apex Court in case of Mahavir Singh Vs. Khiali Ram and others, 2009(3) SCC-439 , wherein the Hon’ble Apex Court has considered the controversy relating to appointment of Lambardar under Punjab Land Revenue Act, 1887 and Rules framed thereunder. The Apex Court held that with regard to the appointment of a Lambardar the age of a candidate is a relevant factor. The Apex Court noticed few old cases of Lahore High Court which throw some light on the subject matter are as under:-

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“In Lt. Malik Abbas Khan v. Ghulam Haidar (1940 Lahore

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Law Times 25) , it was stated:

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“…It is certainly not wise, save in very exceptional circumstances, to appoint for the first time, an Inamkhor or Zaildar whose age is 60.”

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In Kalyan Singh v. Haidar (1928 Lahore Law Times, 33) , the

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Financial Commissioner held that ordinarily the Collector’s choice appointing a Zaildar or Sufedpost should not be interfered with even though the appellate authority believes that his choice was not the best choice.

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Similar view was expressed in Lila Ram v. Asa Ram (1995 Lahore Law Times, 29) , in the following terms:

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CWP No.10483 of 2010

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“…While it is now an established principle that there should be no interference with the choice made by the Collector, it does not follow that where the Collector’s order is based on a misrepresentation of facts, there should still be no interference.”

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The above view has also been followed by the Division Bench of this Court in Phool Kumar’s case (supra).

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It has been observed that there should be no interference with the choice made by the Collector in the matter of appointment of Lambardar even if two views are possible. It is only the prerogative of the Collector to compare the merits of the candidates for the post of Lambardar. The Commissioner/Financial Commissioner has only limited right to interfere that too when the choice of the Collector is found to be perverse, suffers from material irregularity, only then the order of the Collector can be set aside. The learned Commissioner and the Financial Commissioner have not recorded any finding specifically that the finding of the Collector was perverse, rather they have recorded finding that the petitioner is serving in a stone crusher in Sohana for the last twenty years. This finding is based on the writing of the villagers and not on any authenticated documentary evidence. Therefore, this finding is not sustainable. The Collector had categorically recoded that the petitioner is a resident of Village Bitori and his name is in the voter list of the village. Merely, because the petitioner is working at Haryana Stone Crusher Company, Sohana, does not deprive him from performing his duties as Lambardar, rather it should be appreciated that the person is working and earning livelihood of his family. This cannot be

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CWP No.10483 of 2010

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treated as a perverse finding as has been recorded by the Divisional Commissioner, Gurgaon and affirmed by the Financial Commissioner. Similarly, the Financial Commissioner, Haryana has also wrongly recorded that there are concurrent findings by the Courts below with regard to the contentions raised at that time before the Financial Commissioner by Umed Singh. In fact, the finding before the Financial Commissioner was finding of reversal. The Collector has appointed Umed Singh-petitioner as Lambardar, whereas the Divisional Commissioner set aside the order of the Collector and appointed Murari Lal as Lambardar. The order of Financial Commissioner, Haryana is without application of mind and is not based on cogent reasons.

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For the reasons recorded above, I am of the considered view that order dated 28.08.2008 (Annexure P-3) passed by the Divisional Commissioner, Gurgaon and order dated 22.04.2010 (Annexure P-5) passed by the Financial Commissioner, Haryana are not sustainable. The impugned orders of Divisional Commissioner and Financial Commissioner are hereby set aside and order dated 20.09.2005 (Annexure P-1) passed by the Collector is restored. Accordingly, the writ petition is allowed. No order as to costs.

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(PARAMJEET SINGH) JUDGE

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02.01.2012 vcgarg

Umed Singh v. Financial Commissioner, & Ors.

Case brief

What is this about?

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Umed Singh v. Financial Commissioner, & Ors.

Case brief

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