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2005 DIGILAW 384 (HP)

PREM CHAND v. DINU RAM

2005-10-18

A.R.BASU

body2005
ORDER.: This revision petition has been filed under Section 17 of the HP. Land Revenue Act against an order of the Commissioner (Revenue) Himachal Pradesh dated 23.10.2001 whereby he has upheld an order of the Collector Distt. Kullu dated 31.10.1986. 2. Brief facts of the case are that after the death of one Sh. Kesho Ram who was the Kardar of Devta Chaman Rishi, Sh. Dashmi Ram, the father of the present petitioner, was appointed as the Kardar. After the death of Sh. Dashmi Ram, the Distt. Collector Kullu, on the recommendations of the Naib Tehsildar Kullu, appointed Sh. Dinu, the present respondent, as the Kardar vide an order dated 31.10.1986. The present petitioner filed an appeal against this order before the learned Commissioner (revenue) HP. The appeal was filed on the grounds that the petitioner has applied through his mother for appointment as Kardar vide an application dated 27.7.1984 after the demise of his father but the Distt. Collector Kullu did not consider the same. According to the petitioner he was entitled for the appointment as the Kardar on the basis of his hereditary claim and Wajib-ul-arj1. It was further claimed that no opportunity was granted to him by the Distt. Collector and also that the respondent had agreed before the Distt. Collector that as and when the petitioner attains majority, he will relinquish the post of Kardar in favour of the petitioner. After hearing the matter, the learned Commissioner dismissed the appeal vide an order dated 23 10.2001 and it is against this order the petitioner has Tiled the present petition. 3. The record of the courts below was called for and examined. Both the parties filed their written arguments which were taken on record and perused. 4. According to the written arguments field by the petitioner, the petitioner who was minor at the time of his fathers death had applied to the Distt. Collector Kullu to be appointed as the Kardar as per his hereditary claim and the provisions of Wajib-ul-arj. The Distt. Collector Kullu, however, appointed the respondent as the Kardar on the recommendations of the Naib-Tehsildar Kullu vide an order dated 31.10.1986 by ignoring the claim of the petitioner. According to the petitioners a plain reading of the Wajib-ul-arj leaves no room for doubt that the post of Kardar is to be filed up on the basis of hereditary claim. Collector Kullu, however, appointed the respondent as the Kardar on the recommendations of the Naib-Tehsildar Kullu vide an order dated 31.10.1986 by ignoring the claim of the petitioner. According to the petitioners a plain reading of the Wajib-ul-arj leaves no room for doubt that the post of Kardar is to be filed up on the basis of hereditary claim. It has further been claimed that the Kardar is to be filed up on the basis of hereditary claim. It has further been claimed that the Kardar can be removed from the post after following a procedure mentioned in the Wajib-ul-arj and the same can be sought only by the worshipers of deity. The petitioner further claimed that the entire process of recommending the name of respondent for the post of the Kardar goes against the provision of the Wajib-ul-arj. A similar matter titled "khekh Ram versus Yub Raj decided by the Honble High Court of Himachal Pradesh on 2.7.1988 has been referred to and a copy thereof supply (sic-supplied) along with the written arguments which is placed on record. 5. In the written arguments submitted on behalf of the respondent it has been averred that the orders of the Dsitt Collector Kullu as well as those of the Commissioner (revenue) are in accordance with the provisions of the Wajib-ul-arj1. It has been claimed that all procedure were followed for the appointment of the respondent as the Kardar of Devta Chaman Rishi after the death of Sh. Dashmi Ram who was the real brother of the present respondent. It has further been averred that the appoint of the respondent was made after a thorough inquiry by the Tehsildar who submitted the report in favour of the respondent. According to the respondent the present petitioner as well as his brothers are restopped by their acts and conduct as they did not file an application for the appointment of the Kardar as they had themselves stated before the Tehsildar that the respondent is working as the Kardar after death of Sh. Dashmi Ram-Having examined the record and perusing the written arguments filed by the parties, the only point for adjudication in the present matter is whether the present petitioner has a claim over the post of Kardr by virtue of being the son of late Sh. Dashmi Ram. 6. Dashmi Ram-Having examined the record and perusing the written arguments filed by the parties, the only point for adjudication in the present matter is whether the present petitioner has a claim over the post of Kardr by virtue of being the son of late Sh. Dashmi Ram. 6. In this regard the order of the Honble High Corut of Himachal Pradesh passed in the matter of Khekh Ram versus Yub Raj decided on 2.7.1998, is Very relevant as the Honble Court has clearly laid down the law regarding appointment of Kardars in this matter. It has been held by the Honble Court that the office of the Kardar has to be field (sic-filed) up in accordance with the provisions laid down in the Wajib-ul-arj. The Honble Court has further held that the office holder of a Kardar is liable for removal once it is found that he has misconducted him self or has committed theft of the property of the devta or has otherwise gone a bad character. In that situation a person from that family would be traced out who fulfills the qualification for be (sic-his) appointed as Kardar and prior to his appointment the consensus of the followers and devotees of the Devta would betaken. It is hence clear that in appointment of a person to the post of Kardar, the provisions of the Wajib-ul-arj1 are to be given due consideration before appointment to this post. I have perused the repost of the Naib-Tehsildar Kullu which is at page 87 of the case file of the Dsitt. Collector Kullu and I find that no reference to the conditions of the Wajib-ul-arj has been made in the same. The Distt. Collector Kullu has also ignored this important aspect while accepting the recommendation of the Naib-Tehsildar. I further find that the Id. Commissioner too has not appreciated this fact while adjudicating upon the matter. 7. In view of the facts discussed above, the revision petition is accepted. The orders of the Distt Collector Kullu dated 31.10.1986 as well as those of the commissioner Revenue HP. dated 23.10.2001 are set-aside. The matter is remanded back to the Collector Distt. Commissioner too has not appreciated this fact while adjudicating upon the matter. 7. In view of the facts discussed above, the revision petition is accepted. The orders of the Distt Collector Kullu dated 31.10.1986 as well as those of the commissioner Revenue HP. dated 23.10.2001 are set-aside. The matter is remanded back to the Collector Distt. Kullu to decide it afresh after taking into ^whoideration the conditions as laid down in the Wajib-ul-arj as well as the expectations of the devotees of the Devta 8 Announced in the open court today on the 18.10.2005 9 The record of the courts below be returned. This case file be consigned to the record room after due completion -