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2013 DIGILAW 557 (PNJ)

Kishan Lal alias Kishan Chand v. State of Haryana

2013-05-01

RAJIVE BHALLA, REKHA MITTAL

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JUDGMENT Mrs. Rekha Mittal, J.: - The appellant prays for setting aside order dated 16.11.2012, dismissing his writ petition and upholding the appointment of respondent No. 6 (Bhule Ram) as Lambardar of village Kheri Kalan, Tehsil and District Faridabad (Haryana). 2. Counsel for the appellant submits that respondent No. 6 filed Civil Writ Petition No. 1760 of 2009, for quashing orders dated 05.10.2007 (Annexure P5) and 30.12.2008 (Annexure P6), passed by the Commissioner, Gurgaon Division, Gurgaon and the Financial Commissioner, Haryana, respectively, whereby appointment of Bhule Ram as Lambardar by the District Collector, Faridabad, was set aside. The aforesaid petition was allowed, vide order dated 31.08.2010 and the matter was remitted to the Financial Commissioner, Haryana, for deciding the matter afresh and in accordance with law. The Financial Commissioner, Haryana, thereafter, passed order dated 09.10.2012 (Annexure P14) recording therein that Bhule Ram and Kishan Lal (appellant) are not in illegal possession of Government land but as the District Collector is the competent authority to examine the eligibility and suitability of the candidates for appointment to the post of Lambardar, he does not find any reason to disagree with order dated 21.02.2006, passed by the District Collector and ordered the restoration of appointment of Bhule Ram, as Lambardar of the village. It is argued with vehemence that the District Collector while making a decision in favour of Bhule Ram, rejected the candidature of the appellant on the ground that the appellant is in unauthorized possession of Wakf Board land. As the Financial Commissioner, Haryana has held that this finding is incorrect, he was required to either himself or direct the Collector to appreciate the merits of the appellant. It is prayed that the order passed by the Financial Commissioner, Haryana should be set aside and the matter may be remitted to the District Collector for adjudication afresh in the light of the observations made by the Financial Commissioner, Haryana that neither the appellant nor Bhule Ram are in unauthorized possession of the Government/Wakf Board land. 3. Counsel for the contesting respondent, however, submits that the order passed by the Financial Commissioner has been rightly affirmed by the learned Single Judge and the appeal filed by Kishan Lal is liable to be dismissed. It is further submitted that Bhule Ram, who is more meritorious as compared to the appellant, is the best candidate to hold the post of village headman. 4. It is further submitted that Bhule Ram, who is more meritorious as compared to the appellant, is the best candidate to hold the post of village headman. 4. We have heard counsel for the parties, perused the impugned order and the orders passed by revenue authorities. 5. Indisputably, Bhule Ram, respondent No. 6, was ordered to be appointed as Lambardar of the village, vide order dated 21.02.2006, passed by the District Collector, Faridabad. A perusal of the order passed by the District Collector would reveal that Bari Chand, Bhule Ram and Kishan Lal were three candidates aspiring to become Lambardar of the village. The claim of Bari Chand and Kishan Lal (the appellant) for appointment as Lambardar was outrightly rejected on the ground that they are in unauthorized possession of land of Gram Panchayat and the Wakf Board, respectively. With regard to Bhule Ram, it was held that the unauthorized possession over rasta in khasra No. 151 has been made by his brother and not by Bhule Ram himself. The District Collector considered the merits of Bhule Ram alone and held in his favour. However, the District Collector did not discuss the merits of Bari Chand and Kishan Lal, whose claim for appointment as Lambardar, was rejected on the ground that they are in unauthorized possession of Gram Panchayat/Wakf Board land. 6. The appointment of Bhule Ram by the District Collector, was set aside in appeal by the Commissioner, Gurgaon Division, Gurgaon. The order passed by the Commissioner was affirmed by the Financial Commissioner, Haryana. Bhule Ram filed Civil Writ Petition No. 1760 of 2009, which was allowed by this Court, vide order dated 31.08.2010. An extract from order dated 31.08.2010 reads thus:- “In view of what has been stated herein above, the writ petition is allowed, the order dated 30.12.2008 is set aside and the matter is remitted to the Financial Commissioner, Haryana, to decide the matter afresh and in accordance with law. Parties shall be free to place before the Financial Commissioner any relevant material in support of their respective contentions. Parties are directed to appear before the Financial Commissioner, Haryana, on 01.10.2010.” 7. After remand of the case, parties in compliance with the order passed by this Court made their submissions before the Financial Commissioner, Haryana, who vide order dated 09.10.2012, decided in favour of respondent Bhule Ram. Parties are directed to appear before the Financial Commissioner, Haryana, on 01.10.2010.” 7. After remand of the case, parties in compliance with the order passed by this Court made their submissions before the Financial Commissioner, Haryana, who vide order dated 09.10.2012, decided in favour of respondent Bhule Ram. The operative part of the order passed by the Financial Commissioner, Haryana reads as follows:- “I have perused the written arguments by the contesting candidates through their counsels, the order passed by the Hon’ble Punjab and Haryana High Court and other facts available on record. There were three candidates who wanted to become Lambardar of the village namely, Bari Chand, Bhule Ram and Kishan Lal. While passing the orders on 21.02.2006, the Collector found Bari Chand not suitable for the post of Lambardar on account of his illegal possession of Panchayat land. Moreover, Bari Chand himself had recommended the name of Bhule Ram through a Panchayat resolution. Obviously, Bari Chand was not found suitable for the above said post. It is now on record that both Bhule Ram and Kishan Lal are not having any illegal possession of the government land. Keeping in view, the comparative merits of these two candidates, the Collector is the only competent authority to see the eligibility and suitability of candidate for appointment as Lambardar. His decision can be questioned on the basis of any infirmity, pertaining to his order.In the given circumstances, I do not see any reason to disagree with his order passed on 21.02.2006. Therefore, his order is restored and the file is disposed of accordingly.” 8. A perusal of the order passed by the Financial Commissioner, Haryana, reveals that both Bhule Ram and Kishan Lal were not found in illegal possession of government land. However, the Financial Commissioner, Haryana, committed a grave error in recording a finding that the District Collector had examined the eligibility and suitability of all the candidates, therefore, he does not find any reason to disagree with the order dated 21.02.2006. The District Collector, did not examine the comparative merits of the parties for the simple reason that he did not find Kishan Lal and Bari Chand to be worthy of consideration as they have illegally occupied land belonging to Gram Panchayat and the Wakf Board. The District Collector, did not examine the comparative merits of the parties for the simple reason that he did not find Kishan Lal and Bari Chand to be worthy of consideration as they have illegally occupied land belonging to Gram Panchayat and the Wakf Board. As the District Collector had ignored Bari Chand and Kishan Lal from consideration, there was no occasion for him to analysis the comparative merits of Kishan Lal and Bhule Ram and thereafter to take a decision that Bhule Ram is more meritorious. The Financial Commissioner, Haryana has erred in recording a finding that the District Collector has examined the relative merits of the parties and, therefore, there is no reason to disagree with his (the District Collector’s) order passed on the basis of comparative merits of the parties. The learned Single Judge, failed to appreciate that the order passed by the Financial Commissioner, Haryana, is contrary to record and it demonstrates a complete non-application of mind. 9. In view of what has been discussed herein above, the appeal is allowed, the order passed by the Financial Commissioner, Haryana dated 09.10.2012 (Annexure P14) and impugned order dated 16.11.2012, are set aside. As the matter qua appointment of Lambardar is pending for the last more than one decade, without any finality, we do not deem it appropriate to remit the matter to the District Collector, Faridabad, but remit it to the Financial Commissioner, Haryana, for decision afresh. Parties shall be at liberty to make their submissions keeping in view their respective merits. The Financial Commissioner, Haryana, shall decide the matter within a period of three months from parties putting in appearance before him on 05.07.2013. No order as to costs. ---------0.B.S.0------------