Punjab-Haryana High Court
Piare Lal vs The State Of Haryana And Others on 18 August, 2011
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 3056 of 2009
Date of Decision: August 18,2011
Piare Lal
Petitioner
Versus
The State of Haryana and others
Respondents
CORAM; HON'BLE MR.JUSTICE ALOK SINGH
1. Whether Reporters of local news papers may be allowed to see
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. G.S.Gandhi, Advocate
for the petitioner.
Mr.Deepak Girotra, AAG, Haryana.
for respondent Nos. 1 to 3.
Mr.Harsh Garg, Advocate
for respondent No.4.
None for respondent No.5.
Alok Singh, J (Oral)
Petitioner has invoked the jurisdiction of this Court under Articles 226/227 of the Constitution of India assailing the orders dated 16.5.2006 (Annexure P/10) passed by the Collector (Respondent No.3), dated 13.6.2007 (Annexure P/11) passed by the Commissioner, Ambala Civil Writ Petition No. 3056 of 2009 -2- Division (Respondent No.2) and dated 15.10.2008 (Annexure P/12) passed by the Financial Commissioner, Haryana (Respondent No.1) thereby appointing respondent No.4 as Lambardar after rejecting the candidature of the petitioner on the ground that as per report submitted by the Tehsildar and Sub Divisional Officer (Civil), petitioner is in unauthorised occupation of the panchayat land. Order passed by the learned Collector appointing respondent No.4 as Lambardar and rejecting the candidature of the petitioner, was upheld by the learned Commissioner and the learned Financial Commissioner.
I have heard learned counsel for the parties and have gone through the record.
Undisputedly as per the khasra girdawari (Annexure P.7), father of the petitioner is shown in the cultivating possession of the field Rectangle No.7/1, 7/2 and the petitioner's possession is not recorded in the revenue record. Learned counsel for the petitioner has vehemently argued that father of the petitioner may be encroacher, however, petitioner's candidature can not be rejected on the ground that his father had encroached upon the panchayat land. He has further argued that no eviction proceedings has been carried out against the father of the petitioner or against the petitioner for the alleged encroachment. Learned counsel for the petitioner has further argued that Tehsildar as well as Sub Divisional Officer (Civil) have submitted wrong reports against the revenue record under political pressure to say that petitioner is unauthorised occupant of panchayat land; and the Collector was Civil Writ Petition No. 3056 of 2009 -3- misled by placing the wrong and incorrect report against the revenue record while framing opinion in favour of respondent No.4 by appointing him as Lambardar of the village.
Learned counsel for respondent No.4 has argued that since father of the petitioner is recorded in unauthorised possession over the land as per khasra girdawari (Annexure P/7), therefore, petitioner can safely be considered in possession of this land being family member of Puran Ram son of Shera Ram. He has further argued that petitioner has also encroached upon and in possession of khasra No.113, which is the Government hospital land by putting cow-dung cake thereon.
From the impugned orders, I find that candidature of the petitioner was rejected only on the ground that Tehsildar and Sub Divisional Officer (Civil) have reported to the Collector that petitioner is in unauthorised possession of the panchayat land. However, from the revenue record of Annexure P/7, I find that the name of the petitioner is not recorded as the occupier or in possession of the land, rather father of the petitioner is recorded in the possession . In my view, the Collector has been misled by the wrong reports, which are contrary to the revenue record.
Moreover, had the petitioner been in illegal possession of the panchayat land then the revenue authorities as per inspection report would have carried out correction in the khasra girdawari in the column of possession, which has not been done till today. It also goes to prove that reports submitted by the Tehsildar and Sub Divisional Officer Civil Writ Petition No. 3056 of 2009 -4- (Civil) are incorrect which have been given with ulterior motive to help respondent No.4.
Whether petitioner can be said in possession of the Hospital land because petitioner has placed cow-dung cake thereon? It is the common and prevailing practice in every village in India to place cow- dung cake on road side and on the banks of the canals, play-grounds, cremation grounds etc. by the villagers. In the opinion of this Court putting, placing, storing cow-dung cake over public utility land in the village would not amount to possession to say encroachment. To say encroachment there must be actual physical possession of the persons concerned which is missing in the present case.
Hon'ble Apex Court in the matter of Mahavir Singh Vs. Khiali Ram, SCC, 2009 (3), 439, in paragraph Nos. 20 and 21 has observed as under:-
"The High Court while exercising its jurisdiction under Article 226 of the Constitution of India is basically concerned with the correctness of the decision making process and not the merit of the decision. It has not been found by the High Court that Collector in expressing his opinion as regards comparative merit of appellant vis-a-vis respondent No.1 committed an error in his decision making process. The principles of natural justice have Civil Writ Petition No. 3056 of 2009 -5- been complied with. Procedure laid down in the Rules had also been complied with. It is also not to correct to say, as has been contended by Mr.Mahajan that the Collector had not taken into consideration the services rendered by the respondent No.1 to the State. He did not acknowledge that the respondent No.1 had rendered the services to the State as a member of the Armed Forces. The Collector also took into consideration that the views of the respectables of the village were in favour of appellant as also the fact that he had participated in the collection work of the village and helped the government officials at the time of their visit. He further more took into consideration the fact that the Naib Tehsildar, Hansi had also recommended his name.
Even the Circle Revenue Officer had
recommended therefor.
It is, therefore, not a case where the finding
of the Collector can be said to be perverse. It has also not been established that the said statutory authority while taking a decision failed to take into consideration the relevant factors or based its decision on extraneous consideration or on Civil Writ Petition No. 3056 of 2009 -6- irrelevant factors not germane therefor."
As per the dictum of the Hon'ble Apex Court, choice of the Collector in the appointment of Lambardar can be interfered when the same is found to be perverse by placing reliance on the incorrect, false , misleading material or important evidence was overlooked by the Collector which would have resulted in different conclusion or decision of the Collector seems to be out come of extraneous consideration.
I find that the Collector was misled by placing the wrong reports of Tehsildar and Sub Divisional Officer (Civil) which are on the face of them are against the revenue record. It can also be presumed that the wrong reports submitted by the revenue authorities are out of extraneous consideration and, therefore, on these two grounds, impugned orders are liable to be interfered with.
In view of the above, present petition is allowed. Impugned orders are set aside. However, matter stands remanded to the Collector to decide it afresh after taking into consideration merits and demerits of both the candidates. Parties are directed to appear before the Collector on 30.8.2011. Thereafter, the Collector shall hear both the parties and shall form fresh opinion without being influenced by the above observations.
(Alok Singh)
August 18, 2011 Judge
BB
Civil Writ Petition No. 3056 of 2009 -7-