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Himachal Pradesh High Court · body

2005 DIGILAW 77 (HP)

CHAUDHARY RAM v. GURPAL SINGH

2005-03-30

A.R.BASU

body2005
JUDGMENT 1. This is a revision petition under Section 17 of H.P. Land Revenue Act filed by Sh. Chaudhary Ram, the present petitioner against an order dated 17.7.2000 passed by the Ld. Deputy Commissioner Cum-Collector Distt. Una and another order dated 17.11.2000 passed by the learned Commissioner (Revenue) Himachal Pradesh upholding the order of the Collector dated 17.7.2002. 2. Brief facts leading to the dispute are that one Shri Parma Nand, father of the present petitioner was the Lambardar of Village Mandholi, Tehsil Amb, Distt. Una. After his death, the Tehsildar Amb, on directions of the /Sub-Divisional Collector Amb initiated proceedings for appointment of a Lambardar in place of the deceased. Accordingly, the Tehsildar Amb, on 30.1.1997 ordered that a proclamation be made to this effect in the concerned Village. In pursuance of the proclamation, the present petitioner as well as the present respondent applied for the post of Lambardar. The Tehsildar Amb, submitted a detailed report to the Collector Sub-Division Amb on 24.11.1997 whereby he recommended the appointment of the present petitioner. The Collector Sub-Division Amb vide his report submitted to the Deputy Commissioner on 2.12.1997, however, recommended the appointment of the respondent on the grounds that the petitioner is illiterate and of a weak financial status whereas the present respondent is an ex-service man, of a good financial status and also literate. The Deputy Commissioner afforded an opportunity of being heard to both the parties and vide his order dated 17.7.1999 held that the present respondent is an appropriate person to hold the post of Lambardar. 3. Aggrieved by the order of the Deputy Commissioner Cum-Collector Distt. Una, the present petitioner filed an appeal under Section 14 of H.P. Land Revenue Act before the Commissioner (Revenue) Himachal Pradesh which was dismissed on 17.11.2000 and hence the present revision petition has been preferred. 4. The record of the courts below was summoned and the arguments put forth by the learned counsel for both the parties heard. 5. Sh. Surender Sakalni the learned counsel for the petitioner, while reiterating the grounds taken in the revision petition argued that even before the death of Sh. Parma Nand, the present petitioner had being working as a Sarvera Lambardar1 due to the illness of the Sh. Parma Nand. 5. Sh. Surender Sakalni the learned counsel for the petitioner, while reiterating the grounds taken in the revision petition argued that even before the death of Sh. Parma Nand, the present petitioner had being working as a Sarvera Lambardar1 due to the illness of the Sh. Parma Nand. The petitioner continued work and discharged the duties of lambardar for a period of more than one decade meritoriously to the entire satisfaction of the villagers and even authorities concerned. According to him in the interview, the learned Collector interviewed him and the Advocate of the respondent instead of respondent himself and thus, the decision passed by him stand vitiated and liable to be quashed and set-aside. He argued that his claim to the post of Lambardar has been wrongly rejected by the Deputy Commissioner-cum-Collector Una merely on the grounds that his financial condition is not sound and that he was a loanee of a Co-Operative Society, especially as the loan stands repaid in whole. According to him the finding of the Deputy Commissioner-Cum.-Collector that he was illiterate and therefore was not appropriate to function as a lambardar was also not tenable as he had been satisfactorily functioning as a Sarvera lambardar1 when his father late Sh. Parma Nand was not keeping good health. The learned counsel further argued that the respondent was not a person of good character and had been indicted in criminal proceedings before the Session Judge Una. 6. On the other hand the learned counsel for the respondent contended that the claim of the petitioner is based on his being the son of the former Lambardar. He argued that heredity is not basis for appointment to the post of Lambardar. According to him the learned Deputy Commissioner had rightly held that the respondent being an ex-service man and a literate person of a better financial status was appropriate to hold the post of Lambardar. According to him he had never been convicted in any criminal case and therefore the claim of the petitioner that he was not of a good character was baseless. He further contended that the appeal was rightly dismissed by the learned Commissioner on 17.11.2000. He prayed for dismissal of the revision petition. 7. I have heard the learned counsels for both the parties and have perused the entire records. 8. He further contended that the appeal was rightly dismissed by the learned Commissioner on 17.11.2000. He prayed for dismissal of the revision petition. 7. I have heard the learned counsels for both the parties and have perused the entire records. 8. Rule 15 of the Punjab Land Revenue Rules as applicable to Himachal Pradesh, provides as under: - 15. In the first appointment of headmen, regard shall be had among other matters to- (a) his hereditary claims; (b) extend of property of the state by himself or by his family; (c) service rendered to the state by himself or his family; (d) his personal influence, character, ability and freedom from • indebtedness; (e) the strength and importance of the community from which selection of a headmen is to be made; (f) service rendered by himself or by his family in the national movements to secure freedom of India. Same is the position as laid down in para 3 of Chapter 4 of H.P. Land Records Manual. It appears that the claim of the present petitioner has been ignored by the Ld. Deputy Commissioner, Una on the grounds that he is a illiterate person, has taken the loan from Cooperative Society and is not financial sound whereas the present respondent has been found to be appropriate on the grounds that he is Middle pass, and of the better financial standing. 11.In case Inder Raj v/s Financial Commissioners and others, 1974 PLJ 473 (SC), Honble Supreme Court of India confirmed the appointment of the appellant as Lambardar after quashing the order of the Financial Commissioner passed in revision petition on the ground of indebtedness. In the instant case the Ld. Counsel for the petitioner has argued that the debt has been cleared. This position " has not been questioned by the Ld. Counsel for the respondent. 12. Similarly in Kishori Lal v/s Kuldip Singh, 1979 S.L.J. 40 (FC), it has been held as under: - "The office of the Lambardar should be held by a person of good character, ability freedom from indebtedness and having a personal influence in the public. In the instant case, it is on record that the petitioner did make wrong statements which manifestly show that his character is not above board. Such an irresponsible and untrustworthy person cannot be appointed to the office of lambardar." 13. In the instant case, it is on record that the petitioner did make wrong statements which manifestly show that his character is not above board. Such an irresponsible and untrustworthy person cannot be appointed to the office of lambardar." 13. In the present case it has been argued that the respondent was convicted in the trial court though he was acquitted by the appellate court. 14. In the instant case, Ld. Deputy Commissioner has based his findings on the provisions laid down in Rule 14 of Punjab Land Revenue Rules as applicable to Himachal Pradesh or Rule 15 of the Himachal Pradesh Land Records Manual. As per Article 14-16 of the Constitution, there cannot be hereditary preference for the appointment and as such hereditary preference for the appointment to a post is discriminatory. The aspect has also been upheld in case of Khub Ram v/s State of H.P. and others 1990 (1) SLC 16. The Ld. Commissioner has based his decision on this aspect only. 15. The power of revision as per section 115 of CPC is very restricted. 16. This power can be exercised only when the subordinate court appears:- (a) to have exercised the jurisdiction not vested in it by law or (b) to have failed to exercise his jurisdiction so vested or (c) to have acted in the exercise of its jurisdiction illegally and with material irregularity. 17. In the instant case, it is the last provision, which is attracted. 18. The learned Commissioners has referred to the Honble High Court of Himachal Pradesh in case Khoob Ram versus State of H.P. & Ors, 1990 (1) SLC (16) in which it has between held that hereditary preference for appointment to a post is discriminatory. There is no dispute in this regard. The Ld. Commissioner, however, failed to appreciate the fact that the other conditions on the basis of which the present petitioner had been ignored find no mention in the Rule 15 ibid. 19. From perusal of the record and after hearing the Id. Counsel for both the parties it appears that the present petitioner has been ignored because he is illiterate and not of a sound financial condition. Such conditions of appointment are not a prerequisite as per the Rules ibid. 19. From perusal of the record and after hearing the Id. Counsel for both the parties it appears that the present petitioner has been ignored because he is illiterate and not of a sound financial condition. Such conditions of appointment are not a prerequisite as per the Rules ibid. The learned Deputy Commissioner has also not discussed whether the present petitioner was indebted at the time of his application being rejected or he repaid his loan. It is worth while to notice that as per the report of the Tehsildar Amb dated 4.9.1997 available on record of the lower court, the present petitioner has a land holding of 0-48-53 Ha. Though less than the respondent who has 1-26-12 Ha of land. 20. In view of the facts stated above the revision petition is partially allowed and while setting-side the order of the Deputy Commissioner Una dated 17.07.1999 and that of the Commissioner (Revenue) dated 17.11.2000, the case is remanded back to the Deputy Commissioner Cum-Collector Una to decide the appointment of the Lambardar afresh after affording opportunity of being heard to both the parties as well other eligible candidates if such candidates apply for the post. The learned Deputy Commissioner-Cum-Collector should also keep in view the provisions as laid down in the Punjab Land Revenue Rules as applicable to Himachal Pradesh as in this regard. 21. Announced in the open court today on the 30.03.2005. 22. The case file of this court be consigned to the record room after due completion.