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2013 DIGILAW 89 (PNJ)

Parkash Chand v. State of Haryana

2013-01-30

RAMESHWAR SINGH MALIK

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JUDGMENT RAMESHWAR SINGH MALIK, J The present writ petition is directed against the order dated 10.11.2010, passed by the Financial Commissioner, Haryana, thereby upholding the order dated 17.8.2010, passed by the Commissioner, Gurgaon Division, vide which the order dated 16.11.2009, passed by the District Collector, Palwal, appointing the petitioner as Lambardar, was set aside and respondent no.7 was appointed as Lambardar. Facts first. Shorn of unnecessary detailed background, it would suffice to 2 refer to the facts, which are necessary for disposal of the present writ petition. One post of Lambardar fell vacant in village Peharuka Nangla, Majra Solda, Tehsil and District Palwal, on account of the death of earlier Lambardar Sh.Gokal Singh. Proceedings were initiated to fill up this post. Assistant Collector, 2nd Grade, Palwal, vide his report dated 3.5.2006 (Annexure P-1) recommended the name of the petitioner for appointment to the post of Lambardar. Similarly, Assistant Collector, Ist Grade, Palwal, vide his comprehensive report dated 15.6.2006, recommended the name of the petitioner. Thereafter, the learned District Collector, vide his order dated 16.11.2009 (Annexure P-3), appointed the petitioner as Lambardar of village Peharuka Nangla. Dissatisfied with the order of appointment of the petitioner, respondent no.7-Nepal Singh filed an appeal before the Commissioner, Gurgaon Division, who accepted the same vide his order dated 17.8.2010 (Annexure P-5). Petitioner took the matter to the Financial Commissioner, who vide impugned order dated 11.11.2010 (Annexure P-8), dismissed the revision petition, upholding the order passed by the Commissioner. Thus, feeling aggrieved against the above said orders, passed by the learned Commissioner, Gurgaon Division and the learned Financial Commissioner, petitioner has approached this court by way of instant petition, under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari for quashing of the above said impugned orders. Learned counsel for the petitioner vehemently contended that the settled principle of law that choice of the Collector should not be disturbed, until and unless the order has been found to be suffering from patent illegality or perversity, has been glaringly violated in the present case by respondents no.2 and 3, by passing their respective impugned orders. He further submits 3 that the primary reason, which weighed with learned Commissioner as well as learned Financial Commissioner, as it is borne out from the impugned orders, was that they appointed respondent no.7 as Lambardar because he was having hereditary claim. He further submits 3 that the primary reason, which weighed with learned Commissioner as well as learned Financial Commissioner, as it is borne out from the impugned orders, was that they appointed respondent no.7 as Lambardar because he was having hereditary claim. Learned counsel for the petitioner next contended that the impugned orders are patently illegal, in as much as they are contrary to the law laid down by this Hon'ble Court, holding hereditary claim violative of Article 14 of the Constitution of India and thus, was no more available to respondent no.7. He submits that the petitioner was better educated than respondent no.7. Another relevant factor, which has been ignored by respondents no.2 and 3, while passing the impugned orders, was that FIR No.233 dated 26.9.2008 under Sections 148/149/323/324/307/452/506 IPC had been registered against respondent no.7, wherein he was facing the criminal trial, when the impugned orders were passed. Learned counsel concluded by submitting that since the order passed by the learned District collector was neither suffering from any patent illegality or perversity nor any such finding was recorded by the higher revenue authorities, the impugned orders were not sustainable in law. He prays for setting aside the impugned orders by allowing the present writ petition. Learned counsel for respondent no.7, on the other hand, strenuously argued that his hereditary claim was rightly considered by the learned Commissioner and Financial Commissioner, while passing the impugned orders. He further submits that mere pendency of the FIR, which came to be registered against him during the pendency of the proceedings for appointment to the post of Lambardar, would not come in his way because he was finally acquitted in that criminal case, vide judgement dated 16.8.2011, passed by the learned court of competent jurisdiction. He concluded by submitting that the writ petition was without any merit and the same was liable CWP No.17185 of 2011 to be dismissed. Having heard the learned counsel for the parities, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that the present writ petition deserves to be allowed. To say so, the reasons are more than one, which are being recorded hereinafter. Having heard the learned counsel for the parities, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that the present writ petition deserves to be allowed. To say so, the reasons are more than one, which are being recorded hereinafter. It is a matter of record that Assistant Collector, 2nd Grade, Palwal, as per his report dated 3.56.2006 (Annexure P-1), as well as Assistant Collector, Ist Grade, Palwal, as per his comprehensive report dated 15.6.2006 (Annexure P-2), recommended the name of petitioner for appointment to the post of Lambardar. Learned District Collector, after discussing merits and demerits of all the candidates, appointed the petitioner as Lambardar by way of his order dated 16.11.2009 (Annexure P-3). The operative part of the order dated 16.11.2009, passed by the learned District Collector, appointing the petitioner as Lambardar, reads as under : “After hearing the arguments and examination of the evidence brought on the case file, this court has come to the conclusion that there are only four candidates namely (1) Parkash Chand son of Avtar Singh; (2) Shish Ram son of Rattan Lal; (3) Nepal Singh son of Gokal Singh; (4) Nain Singh son of Munshi Ram, contesting for this post in the present case. In compliance to the order dated 8.1.2008, passed by Ld. Commissioner, only one eligible person out of the above noted candidates is to be elected for this post of Nambardar. On the perusal of evidences, only Parkash, candidate is found to be eligible candidate out of above noted candidates. The said candidate is most educated candidate than all other candidates. Application of Main Singh, candidate, cannot be admitted on account of time barred. The Sub Divisional Officer (Civil), Palwal has also mentioned in his report the application of Nain Singh, candidate to be time barred. Other candidates Shish Ram and Nepal Singh are not so eligible, as Parkash, candidate is eligible for the post of Nambardar. Shish Ram, candidate, has not got deposited any amount in small saving, nor has provided any family planning case. He is having lesser qualification as compared to Parkash, candidate. There is an FIR registered against Nepal Singh, candidate. Similarly, an FIR is also registered against Nain Singh. Copy of the FIR is brought on case file. Shish Ram, candidate, has not got deposited any amount in small saving, nor has provided any family planning case. He is having lesser qualification as compared to Parkash, candidate. There is an FIR registered against Nepal Singh, candidate. Similarly, an FIR is also registered against Nain Singh. Copy of the FIR is brought on case file. In the above noted circumstances, Nepal Singh, Shish Ram and Nain Singh cannot be considered to be eligible for this post of Nambardar. The Sub Divisional Officer (Civil), Palwal has also recommended name of Parkash, candidate for the post of Nambardar. Parkash, candidate, is matriculate 32 years old young man. He is having about 32 kanals land. He has provided 9 cases of family planning and got deposited a sum of ` 15,000/-in small saving. Sarpanch of the village has also accorded his consent for appointing Parkash, candidate as Nambardar. Parkash, candidate is a person having good moral character. Keeping in view all the above noted facts, the Sub Divisional Officer (Civil), Palwal has recommended the name of Parkash, candidate for appointing him as Nambardar for village Peharuka Nangla. I agree with his recommendation and do hereby appoint Parkash, candidate, as Nambardar of village Peharuka Nangla. Parkash will be responsible for amount of security. An entry of this order be made in revenue and police record. Certificate of Nambardar be issued after elapse of period for appeal. Order pronounced. Case file be consigned to record after due compliance.” A careful perusal of the above said order passed by learned District Collector would show that he has committed no error of law, while passing the order appointing the petitioner as Lambardar. Neither the order was based on misrepresentation of facts nor it was suffering from any patent illegality, perversity or jurisdictional error. However, learned Commissioner, Gurgaon Division, set aside the above said order, appointing respondent no.7 as Lambardar in place of the petitioner. It is necessary to be considered here as to what was the reason, which weighed with the learned Commissioner, while passing his impugned order. The operative part of the order dated 17.8.2010, passed by the learned Commissioner, reads as under : “I have considered the arguments advanced by all the ld. Counsels and have also perused the record on file carefully. It is well settled law that the choice of ld. The operative part of the order dated 17.8.2010, passed by the learned Commissioner, reads as under : “I have considered the arguments advanced by all the ld. Counsels and have also perused the record on file carefully. It is well settled law that the choice of ld. Collector in appointing lambardar is final until and unless there is grave error, illegality or perversity in the order appointing the lambardar. In this particular case, the order of Ld. Collector is not based on merits and there is illegality in the order. The Ld. Collector has ignored the hereditary claim of the appellant Nepal Singh without any reason or substance. Neither the A.C. 2nd Grade nor the A.C. Ist Grade have mentioned in their orders that any FIR is pending against the appellant Nepal Singh. Rather the police verification shows that Nepal Singh bears a good conduct and character and nothing adverse was reported against him. Nepal Singh also 8th class pass, younger to the respondent and is having 8 acres of land which is more than the land owned by the respondent. He has also motivated persons for family planning and also contributed to the small savings. The respondent is 10th class pass and this is the only criteria which seems to have gone in his favour. The other appellant Nain Singh who is nephew of the deceased Lambardar has submitted his application after the last date of receiving the applications, hence he is not a deserving candidate. The other appellant Shish Ram has not submitted any proof of his educational qualification. In view of the above discussion the appellant Nepal Singh possesses a comparative merit over the respondent Prakash who has been appointed Lambardar. The appellant Nepal Singh is having more land than the respondent and he is the son of deceased Lambardar. He should have been given preference by the Ld. Collector. In view of the above, the order of Ld. Collector is set aside and the case is remanded to the Ld. The appellant Nepal Singh is having more land than the respondent and he is the son of deceased Lambardar. He should have been given preference by the Ld. Collector. In view of the above, the order of Ld. Collector is set aside and the case is remanded to the Ld. Collector, Palwal with the direction that the appellant Nepal Singh be appointed as Lambardar of village Peharuka Nangla.” Similarly, learned Financial Commissioner considered the hereditary claim of respondent no.7, while passing the impugned order dated 10.11.2010 (Annexure P-8) observing as under : “After hearing the counsel for the appellant and after going through the various reports of AC, 2nd Grade, AC Ist Grade and order passed by the Collector, Palwal has not appreciated the provisions of Punjab Land Revenue Rules, 1909 specifically as no mention of the hereditary claim of the respondent Nepal Singh has been made in addition neither AC, 2nd Grade nor AC, Ist Grade has mentioned about any FIR pending against Sh. Nepal Singh. Rather, police verification shows that Sh. Nepal Singh bears a good conduct and character and is 8th pass, younger to the appellant and having 8 acres of land which is more than the land owned by the appellant. Keeping in view the provisions of Punjab Land Revenue Rules, 1909, the hereditary claim and extent of land holdings are the two major merits which should not have been ignored by the Collector in his order dated 16.11.2009. Hence, keeping into consideration the well settled preposition that choice of Collector can be interfered only when there is grave error, illegality or perversity in the order. I find no irregularity in the Commissioner order dated 17.8.2010 as enunciated above and accordingly uphold his decision. Revision petition is hereby dismissed.” A combined reading of all the three orders passed by the respondent revenue authorities would show that the learned Commissioner as well as learned Financial Commissioner fell into serious error of law, while erroneously considering the hereditary claim of respondent no.7, appointing him as the Lambardar. It is so said because except the hereditary claim, the petitioner was having a clear edge on respondent no.7, so far as other relevant factors were concerned. In any case, there was no patent illegality or perversity in the order passed by learned District Collector, appointing the petitioner as the Lambardar. It is so said because except the hereditary claim, the petitioner was having a clear edge on respondent no.7, so far as other relevant factors were concerned. In any case, there was no patent illegality or perversity in the order passed by learned District Collector, appointing the petitioner as the Lambardar. Having said that, this court feels no hesitation to conclude that the choice of the Collector, though not an absolute rule in every situation, yet it cannot be upset lightly by the higher revenue authorities in the hierarchy. In the present case, since the order passed by learned Collector was not suffering from any patent illegality, perversity or jurisdictional error, the impugned orders passed by learned Commissioner as well as by learned Financial Commissioner are not sustainable in law. So far as the hereditary claim is concerned, the issue is no more res integra. It was held by a Division Bench of this court in Karnail Singh Vs. State of Haryana, 1974 PLR 67 that Rule 17(ii) being violative of the fundamental rights guaranteed by Articles 14,15 and 16 of the Constitution of India, the provision providing for the hereditary claim was ultra vires and unconstitutional. The Division Bench judgement in Kanail Singh's case (supra) was again followed by this court in Gurmeet Singh Vs. Financial Commissioner (Appeals-I) and others 2011(1), Land Law Reporter, 142. Respectfully following the law laid down by the Division Bench in Karnail Singh's case (supra), it is unhesitatingly held that the impugned orders passed 10 by the learned Commissioner, as well as by the learned Financial Commissioner, run counter to the law laid down by this court. No other argument was raised. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that the impugned orders suffer from patent illegality, being contrary to the law laid down by this court. In this view of the matter, the impugned orders dated 17.8.2010 (Annexure P-5) and dated 10.11.2010 (Annexure P-8), passed by learned Commissioner, Gurgaon Division, Gurgaon and the learned Financial Commissioner, Haryana, respectively are hereby set aside. The order dated 16.11.2009, passed by the learned District Collector, Palwal, is ordered to be restored. Resultantly, the instant petition stands allowed, however, no order as to costs.