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2001 DIGILAW 1200 (PNJ)

Jasvir Singh v. Sukhwinder Singh

2001-10-24

RUPAN DEOL BAJAJ

body2001
ORDER Rupan Deol Bajaj, FC. - This revision petition has been filed under Section 16 of the Punjab Land Revenue Act, 1887 against the order dated 8.4.1999 passed by the Commissioner, Patiala Division, Patiala and the order dated 3.6.1997 passed by the Collector, Ludhiana in the matter of appointment of the Lambardar of Village Haibowal Kalan, Tehsil and District Ludhiana. 2. The brief facts of the case are that Randhir Singh Lambardar of village Haibowal Kalan, Tehsil and District Ludhiana, died on 11.5.1994 and the Lambardari fell vacant. Jasvir Singh, son of the deceased Lambardar applied for the first time for his appointment on the said post on 23.5.1994. The Halqa Patwari made his report on 24.5.1994 regarding the death of the Lambardar and the Collector vide his order dated 15.7.1994, granted permission for the filling up of the post. One Rachhpal Singh also applied for the post of Lambardar on 17.6.1994. The Munadi was made on 25.8.1994, vide No. 518 of the Rapat Roznamcha of Patwari. In response to the said munadi, only Jasvir Singh, son of Late Randhir Singh Lambardar applied on 26.8.1994 and no other candidate applied for the post of Lambardari within the stipulated time. His antecedents were got verified from the police authorities and the SHO PS Sarabha Nagar Ludhiana, vide his report dated 8.12.1994, made a favourable report stating therein that in case Shri Jasvir Singh is given Lambardari, local police shall have no objection to it. 3. Thereafter, one Nirmal Singh moved an application dated 28.2.1995 to the Distt. Collector stating that either the munadi was not made, and if made, he was not aware of it and his name may also be considered for the post of Lambardar. The Distt. Collector heard the counsel for the other candidate Rachhpal Singh who submitted that no mustri munadi was made in village. The DC gave a finding that the mustri munadi was not made properly and, therefore, vide his order dated 17.1.1996 remanded the case to the SDO (C) Ludhiana for fresh munadi. In consequence, a second mustri munadi was made on 10.5.1996 calling for application within 15 days. The petitioner stated that surprisingly neither Rachhpal Singh nor Nirmal Singh applied for the post. At this stage a new candidate Sukhwinder Singh (the present respondent) also entered the fray and submitted his application dated 22.5.1996 for the post of Lambardar. In consequence, a second mustri munadi was made on 10.5.1996 calling for application within 15 days. The petitioner stated that surprisingly neither Rachhpal Singh nor Nirmal Singh applied for the post. At this stage a new candidate Sukhwinder Singh (the present respondent) also entered the fray and submitted his application dated 22.5.1996 for the post of Lambardar. The Tehsildar after hearing the candidates, again called for the police report of their antecedents which was made on 27.11.1996. The report was favourable with respect to all the candidates, including once again the petitioner. 4. The Tehsildar vide her report dated 14.1.97 recommended the name of the respondent Sukhwinder Singh. She rejected the claim of the present petitioner on the ground that an FIR 107 dated 8.7.94 had been filed under Section 160 IPC against the petitioner in which case he had been convicted and fined Rs. 100/- by the court. The SDO(C), Ludhiana, after hearing both the parties, also recommended the name of the respondent Sukhwinder Singh, and rejected the claim of the petitioner on the same ground. When the matter came up for consideration before the District Collector (DC) Ludhiana, he heard counsel for both the parties, examined the record and found that both the candidates (the petitioner and respondent) possessed almost equal qualifications. But Jasvir Singh had been fined Rs. 100/- under Section 160 IPC on 15.7.1994 by the Court. He, therefore, appointed the other candidate Sukhwinder Singh, who had applied for Lambardari of village Haibowal Kalan much later. 5. A review petition was filed by the petitioner before the Distt. Collector wherein he took numerous grounds (about 13 in number) to streets that the respondent Sukhwinder Singh was non-suited for the post of Lambardari and the petitioner was far better than him. The review application dated 17.6.1997 was rejected by the Distt Collector vide order dated 26.8.1997. Aggrieved by the order District Collector, the petitioner filed the appeal before the Commissioner, Patiala Division, Patiala. After hearing counsel for the both the parties and perusing the record, the same was dismissed by the Commissioner vide his order dated 8.4.1999. 6. Still feeling aggrieved by the courts below, the petitioner has filed the present revision petition. The matter was first heard on 4.10.1999 by Mr. Y.S. Ratra, IAS, FCD who has holding charge of the post of FCA-II during the leave period of the present presiding Officer. 6. Still feeling aggrieved by the courts below, the petitioner has filed the present revision petition. The matter was first heard on 4.10.1999 by Mr. Y.S. Ratra, IAS, FCD who has holding charge of the post of FCA-II during the leave period of the present presiding Officer. The revision petition was admitted, and the operation of the order of the Commissioner, Patiala Division dated 8.4.1999 was stayed by him, and the orders were conveyed to the lower authorities for meticulous compliance. 7. However, later, on dated 29.5.2000 counsel for the petitioner filed a contempt petition praying that the respondent, in flagrant violation of the lawful order of this court dated 4.10.1999, continued to function as Lambardar, and contempt proceedings may be initiated against the respondent and lower revenue authorities who had allowed the respondent to work as Lambardar despite stay orders issued by this court. Deputy Commissioner and Tehsildar concerned revenue officers were summoned, including the respondent and the matter was considered on 16.3.2001. After perusing the reply of the Distt Collector it was found that the stay order had been duly received by the DC on 25.10.99, which had reached the patwari through proper channel on 25.11.99, and had been entered in the Roznamcha waquiati also. However the Report of the Distt. Collector was silent regarding the action taken on the order of this court and it was found that the stay order dated 4.10.1999 passed by the learned predecessor had not been acted upon and by the concerned officials, and respondent had been deliberately allowed to work for more than a year with impunity, inspite of the authorities having full knowledge of the stay orders. The contempt proceedings are now going on separately against the respondent and concerned officials. 8. Arguments of both counsel for the parties were heard. Both the counsel were also directed to file the written arguments which have been filed by them and these have been placed on record. Counsel for the petitioner has submitted that his client had an undisputable hereditary claim because his grand father Santa Singh and thereafter his father Randhir Singh, had worked as Lambardar of village Haibowal Kalan. The petitioner had also worked as Sarpanch under the guidance of his father and had gained valuable experience of the responsibilities of a Lambardar in that capacity. The petitioner had also worked as Sarpanch under the guidance of his father and had gained valuable experience of the responsibilities of a Lambardar in that capacity. He further submitted that Sukhvinder Singh, respondent was never in the picture when the first mustri munadi was made on 25.8.1994. It was only the second time round that the respondent entered the fray when one Nirmal Singh, moved an application to the Collector for the post of Lambardar, one and a half years later. Counsel for petitioner submitted that this application of Nirmal Singh was got moved deliberately as a decoy candidate at the instance of Sukhvinder Singh. Separately, through influence of his brother (who was working as DPO Ludhiana at that time, and was presently working as DDPO Ludhiana) was able to get a frivolous case registered against the petitioner and his brother under section 160 IPC which was decided with unprecedented promptitude within a week with a fine of Rs. 200/- i.e. Rs. 100/- imposed upon the petitioner and Rs. 100/- imposed upon his brother. Counsel further alleged that even this fine had not been paid by the petitioner and his brother, but was paid instead by the respondent and his brother through the police. although the challan was given only on 14.7.97 the petitioner had been told by the respondent and his brother that he will be acquitted/discharged on 15.7.1994. Therefore, the respondent had played a fraud upon the petitioner only to get him debarred from contesting for his hereditary Lambardari. Counsel further argued that the respondent did not stop using his influence through his brother, because even when the stay order had been granted by this court against the operation of the orders of the Commissioner, he still managed to continue to work as Lambardar for more than a year thereafter. This instance, the counsel submitted, was sufficient to prove the personal influence of the respondent within the District Administration which he exercised even to pre-empt the lawful order of this Court. Counsel for the petitioner further submitted that the respondent was not even a resident of village Haibowal Kalan. Necessary proof of this effect had been produced and given by the petitioner to the Collector and other revenue authorities, but the lack of this essential qualification had been ignored by them, while making the appointment. Counsel for the petitioner further submitted that the respondent was not even a resident of village Haibowal Kalan. Necessary proof of this effect had been produced and given by the petitioner to the Collector and other revenue authorities, but the lack of this essential qualification had been ignored by them, while making the appointment. The counsel further submitted that the respondent, along with his brother and father were under debt at the time of his appointment as Lambardar. Copy of the plaint dated 16.7.98 was produced before the Commissioner which had been filed by the Dena Bank against all three, i.e. the respondent and his father and brother. As per plaint, the respondent, his father and his brother had taken a loan of Rs. 1,30,000/- but did not return the same despite the issue of notices. Ultimately, the Bank filed a suit for the recovery of Rs. 2,04,587.00 (which included principal amount as well as the interest accrued thereon till the date of filling). Counsel further alleged that in the said civil suit, service of the respondent and other defaulters could not be effected in the village Haibowal Kalan in ordinary way and, therefore, the court ordered that their service be made through munadi, which showed that the respondent was not the resident of village Haibowal Kalan. 9. Counsel for the petitioner further submitted that under Rule 16(1) (a), of village Headman Rules, year 1909, a Lambardar sentenced to imprisonment of one year or more only can be dismissed and in the guidelines given in rule 15 of the rules ibid, there is no bar to the appointing of a person as Lambardar, if he had been sentenced for petty matters as was the case with the petitioner. According to him the lower revenue authorities did not examine this point nor tried to know the truth of the matter. In support of his claim, he relied upon 1983 PLJ 142 (HC), 1980 PLJ 54, 1982 PLJ 389, 1974 PLJ 476, LLT 1952 Vol. XXXVII Page 10, LLT 1961 Suppl. 133. According to these citations hereditary claims are required to be given preference. As per 1983 PLJ-142 - sentence of 6 months RI and fine of Rs. 200/- Causing of blunt weapon injury - Does not indicate criminality - Conviction for such offence - Does not render incumbent of office unfit to discharge duties of Lambardar etc. 133. According to these citations hereditary claims are required to be given preference. As per 1983 PLJ-142 - sentence of 6 months RI and fine of Rs. 200/- Causing of blunt weapon injury - Does not indicate criminality - Conviction for such offence - Does not render incumbent of office unfit to discharge duties of Lambardar etc. In view of this, counsel for the petitioner prayed that the petitioner having not been able to get justice at any level from the courts below despite having merits in his claim, his revision petition may be accepted and the orders of the courts below may be set aside and he may be appointed as Lambardar. 10. Counsel for the respondent verbally, as well as through written arguments, contended that the recommendations made by the Tehsildar, and the SDM were in his favour. He submitted that the respondent is a resident of H.No. 1728 village Haibowal Kalan, Ludhiana having 7K-10M land as per Jamabandi for 1996-97. Respondent is 9th pass. One FIR filed against the petitioner and his brother under section 160 IPC ended in conviction wherein he along with his brother was fined Rs. 200/-. It was on this basis that this name had been rightly ignored by the Tehsildar, as well as SDO(C) Ludhiana. The District Collector Ludhiana appointed the respondent because he had an edge over the petitioner on merits, since the petitioner had been convicted by the Court of Judicial Magistrate Ludhiana on 15.7.1994 with a fine of Rs. 100/- which had been duly paid by him off. He also claimed that his client had more land than the petitioner. Besides respondent had 42K-1M land in another village Baloke also. According to him, the respondent is the owner of the Chakki and is easily available in village, whereas the petitioner has a truck, and remained mostly absent from the village. Counsel further submitted that the loan had been obtained by the father of the respondent and had already been repaid by him and his brother. (This is not found to be correct since the loan was taken by three of them, as per the plaint of Dena Bank). He further emphasised that the hereditary claim was not recognised under Rule 15 of the village Headman Rules. (This is not found to be correct since the loan was taken by three of them, as per the plaint of Dena Bank). He further emphasised that the hereditary claim was not recognised under Rule 15 of the village Headman Rules. At the end of his written arguments counsel submitted that the choice of Collector in the appointment of Lambardari cannot be disturbed, unless the same was perverse and illegal and there was no illegality in the order of the Collector. In view of this he was prayed that the revision petition may be dismissed. 11. I have gone through the record and have given careful consideration to the contentions of the counsel of both the parties, oral & written as well as the citations & judicial pronouncements quoted by them. In the first instance it is seen that all the revenue authorities below have given great weightage to the punishment and importance to the punishment imposed by the civil court under Section 160 IPC of the petitioner. Sections 159 & 160 IPC are reproduced as below :- "159. Affray :- When two or more persons, by fighting in a public place, disturb the public peace, they are said to "commit an affray". "160. Punishment for committing affray :- Whoever commits an affray, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both". The Judicial Magistrate Ist Class Ludhiana vide its order dated 15.7.1994 under Section 160 sentenced the petitioner along with his brother as under :- "Both the accused/convicts have been afforded opportunity to advance arguments on quantum of sentences. They have pleaded that they are the first offenders and they have taken vow that they will not repeat the same act again. In the opinion of this court, the ends of justice will be met if both the accused punished with a fine of Rs. 100/- each. Ordered accordingly. Both the accused are also directed to pay Rs. 100/- each as cost of litigation. The amount of fine as well as cost of litigation has been paid in the Court". Perusal of the aforesaid section and the quantum of sentence reveals that the petitioner did not cause any harm to the person/property of third person with some criminal intention. 12. 100/- each as cost of litigation. The amount of fine as well as cost of litigation has been paid in the Court". Perusal of the aforesaid section and the quantum of sentence reveals that the petitioner did not cause any harm to the person/property of third person with some criminal intention. 12. Counsel cited 1980-PLJ 54 Chauhal Ram v. Harnam Singh, 1974 PLJ 476 Amrik Singh v. Sawan Singh, LLT/1952 Vol. XXXVII 1958 page 10, Kartar Kaur v. Bhagwan Singh and LLT 1961 Supple. 133 Harnam Singh v. Karam Chand as under :- a) 1980 PLJ 54 Chauhal Ram versus Harnam Singh, where it has been held :- Punjab Land Revenue Rules-Rule 15-Lambardar, appointment of Candidate held guilty by Court under Sections 325/34 IPC for causing injuries to certain persons but given benefit of Section 4 Probation of Offenders Act and released on probation for a period of one Year-Wrong to draw adverse inference about character or candidate on the basis of his having been released on probation- Not rendered unfit for post of Lambardar-195 PLJ 34 Distinguished. b) 1974 PLJ 476 - Amrik Singh v. Sawan Singh where it has been held :- (b) Land Revenue Rules-Rule 15 and 16 - Appointment of Lambardar- Disqualifications proposed in rule 16 for a serving Lambardar-Equally applicable to Lambardar to be freshly appointed. (d) Land Revenue Rules-Rule 16-Conviction of less than one year-Not to be taken as a disqualification. It is clearly intended by Rule 16 of the Land Revenue Rules that conviction of less than one year should not be taken as a disqualification and a Lambardar even though serving in that offence if convicted of a minor offence and give light punishment, should continue to function as a Lambardar. c) LLT Vol. XXXVII 1958 page 10-Kartar Kaur v. Bhagwan Singh decided by Shri C.S. Kahlon, ICS, Additional Financial Commissioner, Punjab, wherein it has been held :- "Held that, a plain reading of Rule 16 of the Punjab Land Revenue Rules means that it applies to a Lambardar when he is serving as such and is sentenced to imprisonment for one year or more. But a person who was convicted and sentenced many years ago and since then has been conducting himself without any blemish, can be considered for appointment as a Lambardar." d) LLT 1961 Supple. But a person who was convicted and sentenced many years ago and since then has been conducting himself without any blemish, can be considered for appointment as a Lambardar." d) LLT 1961 Supple. Page 133-Harnam Singh v. Karam Chand wherein it has been held :- "Punjab Land Revenue Rules-Rule 15 and 16-Lambardar-Appointment of old conviction-Effect of. Held, that conviction and sentence many years ago does not dis-entitled a candidate from being appointment a Lambardar." These citations are found to be quite relevant wherein it has invariably been held that sentence and imprisonment for upto one year should not be taken as a disqualification. Rather these authorities are in favour of such persons after they were awarded punishment and became Lambardar, but in the present case the petitioner had not been awarded the punishment of imprisonment. He was yet a candidate and still to be considered for the post of Lambardari and therefore, the punishment given to the petitioner by civil court for the offence of affray, in view of the aforesaid citations, do not come in the way of the petitioner for his consideration for the post of Lambardari. Also the offence he is convicted for does not involve dishonesty, cheating or moral turpitude. 13. The conduct of the respondent in the case is also not found to be above board. Respondent successfully evaded his service in this case and continued to function as Lambardar even when a stay was granted by this court. It is not possible that he did not come to know of the stay, since at the Tehsil level such news cannot be kept secret, rather it spreads like wildfire, it was only after the initiation of the contempt proceedings against the respondent and revenue authorities that his services was made in the main ROA, and he stopped working as Lambardar. 14. The allegation of the counsel for the petitioner that the respondent was responsible for a deep rooted conspiracy to get the petitioner debarred from the post of Lambardari, and the conviction of the charges of affray were got effected the petitioner and his brother by the respondent through his brothers influence appears a little far fetched. 14. The allegation of the counsel for the petitioner that the respondent was responsible for a deep rooted conspiracy to get the petitioner debarred from the post of Lambardari, and the conviction of the charges of affray were got effected the petitioner and his brother by the respondent through his brothers influence appears a little far fetched. But it does seem a strange coincidence that a question mark was placed on the hereditary claim of the both the petitioner and his brother, being the only two sons of the deceased Lambardari, being convicted for the offence of affray on 15.7.1994, the same day when the collector gave permission for the filling up of the post of Lambardar created due to the death of their father i.e. on 15.7.94. It is also seen that the police had given Jasvir Singh, a clean chit on 8.12.1994, after his conviction for affray and then again on 27.11.1996. It is also observed that Jasvir Singh was the only candidate in the original round and the Munadi was made afresh at the instance of late entrants Nirmal Singh, and Ranchapal Singh. Certain adverse inferences flow from the fact that surprisingly they never applied for the post and vanished from the scene. Rather the present respondent entered his application who had never applied earlier. The hereditary claim of the petitioner was altogether ignored by all the revenue authorities and the respondent was recommended and appointed as Lambardar even when the respondent was clearly ineligible to be considered for the post of Lambardari being under public debt. It is correct that the respondent had cleared the debts of Dena Bank later on, but the same was only after the bank had resorted to civil litigation against the respondent and his father and brother etc. 15. In view of the authority of the Punjab & Haryana High Court cited as Tek Ram v. FC Haryana, 1998(2) PLJ 9, I am of the considered view that the case of the petitioner was not properly appreciated by the revenue courts below. Counsel for respondent could not rebut the arguments or facts put forth by the counsel for the petitioner. He was also unable to rebut the allegations of the counsel for the petitioner that the respondent was not the resident of village Haibowal Kalan at the time of the applying for the post of Lambardari. Counsel for respondent could not rebut the arguments or facts put forth by the counsel for the petitioner. He was also unable to rebut the allegations of the counsel for the petitioner that the respondent was not the resident of village Haibowal Kalan at the time of the applying for the post of Lambardari. Counsel for the respondent produced the copy of the voter list but it was not found to pertain to village Haibowal Kalan. His argument was that the father of the respondent was Sarpanch of Joint village Panchayat of village Haibowal kalan and Baloke. I am afraid this contention of the counsel for the respondent does not make the respondent eligible for the post. It is settled law that a Gram Panchayat can be made jointly for one or two villages, but for the Lambardari of even one Patti within the village, a candidate from another Patti of the same village cannot be treated as eligible. Hence the claim of the respondent that he was the resident of village Haibowal Kalan cannot be accepted. 16. The counsel for the respondent had taken the plea that the choice of the Collector in the matter of Lambardari should not be disturbed unless the same was illegal and perverse. However, in the view of the attendant facts and circumstances of the present case as discussed above, which are not clean and clear, I find the authority cited by counsel for the petitioner as 1998(2) PLJ 9 much more applicable, which states :- "Punjab Land Revenue Rules, Rule 15 - Notification No. 81 dated 1st March, 1888 - Competent Authority for appointment of Lambardar - Collector of the District - Plea that Commissioner or Financial Commissioner had no jurisdiction to select village Headman-Cum-Lambardar as it is Collector of the District alone who is Competent Authority to appoint Lambardar - Not tenable- Selection of Village Headman-Cum-Lambardar by Financial Commissioner/Commissioner-Cannot be set aside on that ground - Financial Commissioner and Commissioner as revisional authority or appellate authority had right to pass same orders that can be passed by Collector - Punjab Land Revenue Act, Sections 28, 13 and 16". 17. 17. In view of the above discussion, the revision petition is accepted and the orders of the Collector dated 3.6.1997 appointing Shri Sukhwinder Singh, son of Bachan Singh, as Lambardar of village Haibowal Kalan and the order of the Commissioner, Patiala Division, Patiala dated 8.4.1999 upholding that order and hereby both set aside. Shri Jasvir Singh, son of Randhir Singh, the deceased Lambardar is hereby appointed as Lambardar of village Haibowal Kalan, Tehsil and District Ludhiana. The Distt Collector, Ludhiana is directed to issue Sanad Lambardari to Shri Jasvir Singh, within 10 days from the receipt of copy of this order. Revision allowed.