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2010 DIGILAW 1280 (PNJ)

Phool Kumar v. State Of Haryana

2010-03-25

ADARSH KUMAR GOEL, ALOK SINGH

body2010
Judgment Alok Singh, J. 1. By way of present appeal, the appellant is assailing order dated 19.1.2009 passed by learned Single Judge of this Court whereby dismissing the writ petition challenging the order of the Commissioner and the Financial Commissioner, disturbing the order of the Collector, whereby the petitioner was appointed as Lamberdar of the village. 2. Brief facts of the present case are that office of Lambardar of Village Mauza Chatia Aulia, Tehsil and District Sonepat, fell vacant on the death of the then Lambardar, Amar Dass. Applications were invited from all eligible and interested persons for appointment as Lambardar. Eight persons gave applications but except the petitioner and respondentNo. 4, remaining candidates withdrew their applications. The Collector, Sonepat after discussing the inter se merit of the petitioner and respondent No. 4, appointed the petitioner as Lambardar of the Village on 22.3.2007. Respondent No. 4 filed an appeal against the said order before the Commissioner, Ludhiana Division, Ludhiana. He set aside the order passed by the Collector and appointed respondentNo. 4 as Lambardar. The said order was challenged before the Financial Commissioner, Haryana, who dismissed the revision petition on 2.1.2009. 3. Learned counsel for the appellant vehemently argued that the opinion of the Collector is final and if the Collector has compared the merits of the candidates, then neither the Divisional Commissioner nor the Financial Commissioner has any jurisdiction to interfere with the opinion of the Collector appointing the appellant-petitioner as Lamberdar. 4. Learned counsel for the appellant has placed reliance on the judgement of the Apex Court in Mahavir Singh v. Khiali Ram and others 2009(1) RCR(Civil) 757- 2009(1) R.A.J. 442 --2009(3) 439. Hon the Apex Court in Mahavir Singh-s case (supra) has placed reliance on the matter of Lila Ram v. Asa Ram, [1995 Lahore Law Times 29] in which the Lahore High Court had observed as under -- ""...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." 5. The Collector while appointing the appellant as Lamberdar has observed as under -- "Therefore, in accordance with aforementioned facts, 1 have arrived at the conclusion that on the basis of comparative merits Phool Kumar candidate is better than other two candidates for appointment on the post of Lambardar because he is more young and capable than other both candidates. He has sufficient education and property. More persons of the village have appeared to depose in his favour before Circle Revenue Officer which is a proof of his popularity and co-operation in the public. He has extended much co-operation and contribution towards Government Welfare Schemes and many certificates regarding his contribution in Government, Non-government and Charitable Institutions are available on the record. Despite this none of the candidate has succeeded in proving that he has also occupied the panchayati land earlier occupied by his father after the death of his father therefore on the basis of recommendation Naib Tehsildar and Tehsildar and on the basis of aforementioned facts Shri Phool Kumar son of Sukhbir Singh caste Jat is hereby appointed general category Lambardar of village Chitia Aulia, Tehsil and District Sonepat." 6. In appeal, the Divisional Commissioner reversed the finding of the Collector and observed that the appellant is in illegal occupation of Kila No. 28/24/2, hence respondent No. 4 herein is the suitable person to be appointed as Lamberdar. The Financial Commissioner agreed with the view taken by the Divisional Commissioner. In the writ petition, learned Single Judge refused to interfere with the order passed by the Commissioner. 7. In view of the judgement of the Apex Court in Mahavir Singh-s case (supra), there should be no interference with the choice made by the Collector in the matter of appointment of Lamberdar even if two views are possible in the matter of appointment on the basis of merits of the candidates. In the present case, the appellant is alleging that he is not in possession. 8. Order of the Commissioner reads "that in fact, the appellant is not in possession, however, one Rajbir son of Risala is in possession and he has submitted an affidavit that he has taken the panchayat land from the appellant on payment of Rs. 5000/- per annum". 9. 8. Order of the Commissioner reads "that in fact, the appellant is not in possession, however, one Rajbir son of Risala is in possession and he has submitted an affidavit that he has taken the panchayat land from the appellant on payment of Rs. 5000/- per annum". 9. Order of the Commissioner further reads "though the appellant Padam Singh has also been alleged to have encroached upon the Rasta land but as per the affidavit given by the appellant during arguments, the land adjoining to the Rasta in question is in cultivating possession of his brother." 10. From the perusal of the order of the Divisional Commissioner, it seems that writ petitioner was not in possession of any panchayat land, rather Padam Singh, real brother of respondent No. 4 is in possession of panchayat land. There was no justification for the appellate and revisional authorities to interfere with the well reasoned order passed by the Collector appointing the appellant as Lambardar. 11. In view of the above, order passed by the Divisional Commissioner and the Financial Commissioner cannot be sustained. Appeal is allowed orders impugned passed by the Divisional Commissioner and the Commissioner are reversed and that of the Collector is restored.