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2003 DIGILAW 1700 (PNJ)

Ashwani Kumar v. Financial Commissioner Appeals-i

2003-12-20

JASBIR SINGH, V.K.BALI

body2003
Judgment V.K.Bali, J. 1. By this common order, we propose to dispose of three connected writ petitions bearing Nos. 18197, 18212 and 18700 of 2002 as challenge in all these petitions is to common impugned order, Annexure P4, dated 8.10.2002 passed by learned Financial Commissioner, Appeals, Punjab, Chandigarh. The bare minimum facts, that, however, need a necessary mention, have been extracted from CWP No. 18212 of 2002. 2. The matter herein pertains to appointment of Lambardar of village Taggar Kalan, Tehsil Mukerian, District Hoshiarpur, Consequent upon the death of Lambadar Iqbal Singh, out of those, who applied for the post of Lambardar, only four persons appeared before the learned Collector, who, after evaluating the respective merits of all of them, chose to appoint Ashwani Kumar, petitioner herein, as Lambardar of the village. Aggrieved, Tarsem Singh, petitioner in CWP No. 18700 of 2002, filed an appeal before the learned commissioner, which was allowed vide orders dated 28.8.2001 and he was appointed as Lambardar of the village, thus, reversing the order passed by the Collector. It is significant to mention that order of Collector dated 21.2.2000 was challenged by Tarsem Singh alone. Aggrieved, Ashwani Kuinar filed a revision before the learned Financial Commissioner, who vide the impugned orders, has appointed Sukhchain Singh as Lambardar. Before the learned financial Commissioner, Sukhchain Singh too had challenged the order of learned Commissioner seeking to appoint him as Lambardar. It is, thus, clear that whereas Sukhchain Singh had not challenged order of Collector, but when order of Collector was reversed, inasmuch as instead of Ashwani Kumar Tarsem Singh was appointed as Lambardar, he chose this time to challenge the order of the Commissioner. In the circumstances aforesaid, Ashwani Kumar has filed yet another writ petition bearing No. 18197 of 2002. 3. From the narration of facts, given above, it is clear that insofar as Sukhchain Singh in concerned, he could not have successfully maintained a revision before the learned Financial Commissioner as he had reconciled with the orders passed by the Collector appointing Ashwani Kumar as Lambardar. Once, he had acquiesced with the order passed by the Collector, simply because the Commissioner reversed order passed by the Collector and appointed Tarsem Singh as Lambardar, he could not have agitated the matter any further and, therefore, revision filed by him before the learned Financial Commissioner was, in our view, no maintainable at all. Once, he had acquiesced with the order passed by the Collector, simply because the Commissioner reversed order passed by the Collector and appointed Tarsem Singh as Lambardar, he could not have agitated the matter any further and, therefore, revision filed by him before the learned Financial Commissioner was, in our view, no maintainable at all. Order passed by the learned Financial Commissioner, to that extent, needs to be set aside. So ordered. 4. Insofar as revision filed by Ashwani Kumar against order appointing Tarsem Singh as Lambardar is concerned, in our view, that also could not succeed inasmuch as the findings, recorded against Ashwani Kumar, disentitled him to be a Lambardar, on arguments heard by us, have been found to be factually incorrect. It is significant to mention here that learned Financial Commissioner, in the impugned order, Annexure P4, has mentioned that Ashwani Kumar has for long been in illegal possession of Central Government land. As per Jamabandi for the year 1994-95, his possession over 39//12(4-0) being half share of 39/12(8-0) situated in village Jahdpur, Hadbast No. 428, has been regularised. However, as per jamabandi for the year 1999-2000 of the same village, he was in illegal occupation on payment of Rs. 500/- as Lagan of Central Government land measuring 88 Kanals 11 marlas comprised in Khewat No. 250, Khatoni No. 366. It is because of this reason that the learned Financial Commissioner has mentioned that appointing Ashwani Kumar as Lambardar would accord him a position in the revenue hierarchy whereby his continued illegal occupation and ultimate legalization thereof would be facilitated and, therefore, the Commissioner rightly held the choice of district Collector to be perverse. 5. From perusal of Jamabandies, Annexure P3 and P3/1 of the years 1999-2000 and 1994-95, it would transpire, that petitioner is in possession of Central Government land on payment of rent @ Rs. 500/- per acre. It is rather surprising to note that his possession has been found to be unauthorised. A tenant paying rent to the owner can not be described as unauthorised occupant. The findings recorded by learned Financial Commissioner to the contrary can not possibly sustain. In the impugned order, Annexure P4, as referred to above, it has been mentioned that as per jamabandi for the year 1994-95, possession of Ashwani Kumar over 39//12 min (4-0) being half share of 39/12 (8-0) has been regularised. The findings recorded by learned Financial Commissioner to the contrary can not possibly sustain. In the impugned order, Annexure P4, as referred to above, it has been mentioned that as per jamabandi for the year 1994-95, possession of Ashwani Kumar over 39//12 min (4-0) being half share of 39/12 (8-0) has been regularised. However, as per jamabandi for the year 1999-2000 of the same village, he is in illegal occupation on payment of Rs. 500/- as Lagan of the Central government land measuring 88 kanals 11 marlas. This, as mentioned above, can not possibly be termed as unauthorised occupation. We are, thus, constrained to mention that learned Financial Commissioner could not distinguish between a person who occupies the land with permission of the landowner or the one who takes possession without such permission. Permissive possession, like, entry into possession on payment of rent, can not be termed as unauthorised. Order passed by the Financial Commissioner, to that extent, has also to be set aside. 6. Resultantly, two writ petitions filed by Ashwani Kumar, bearing CWP Nos. 18197 and 18212 of 2002 shall stand allowed. Insofar as Civil Writ Petition No. 18700 of 2002 filed by Tarsem Singh is concerned, same has to be dismissed as, once it is found that there was no embargo in appointing Ashwani Kumar as Lambardar nor did he suffer any disqualification, inter se merit can not be gone into by the appellant or revisional Court and choice of the Collector on that count is final, if it is not against the Rules and is not perverse. Writ petition filed by Tarsem Singh is, thus, dismissed. Parties are, however, left to bear their own costs.