Punjab-Haryana High Court
Gamdoor Singh vs The Financial Commissioner ... on 7 October, 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
L.P.A. No. 434 of 2009
Date of Decision: October 7, 2009
Gamdoor Singh
...Appellant
Versus
The Financial Commissioner (Appeals-II) Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. Amarjit Markan, Advocate,
for the appellant.
Mr. Rajesh Garg, Additional AG, Punjab,
for respondent Nos. 1 and 2.
Mr. Sudhir Aggarwal, Advocate,
for respondent No. 3.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in
the Digest?
M.M. KUMAR, J.
This appeal filed under Clause X of the Letters Patent is directed against order dated 29.4.2009 passed by the learned Single Judge, upholding the view taken by the Financial Commissioner in his order dated 11.2.2009 (P-1). The Financial Commissioner had set aside the selection and appointment of the appellant-Gamdoor Singh to the office of Lambardar (Village Headmen). The view of the Financial Commissioner having been upheld by the learned Single Judge, the appellant has filed the instant appeal.
Few facts may first be noticed. There was one Lambardar with the name of Prithi Singh son of Shri Harpal Singh in village Phagguwala, Tehsil and L.P.A. No. 434 of 2009 2 District Sangrur. He died on 1.6.2004. After the death of Shri Prithi Singh, on 15.6.2004 an application was filed by his son Shri Jagdev Singh-respondent No. 4 claiming appointment as Lambardar. On 9.8.2004, the Assistant Collector IInd Grade passed the following order:-
"Dated: 9.8.2004 File presented before me. The sanction has been granted for the appointment of Lamberdar in this file. Mustri munadi be effected in the village for the demand of applications and the file be represented on 24.8.2004.
Sd/- A.C. IInd Grade."
Accordingly process of appointing a new Lambardar was initiated and a notice for publication (Mustri Munadi) dated 9.8.2004 (P-3) was issued informing everyone about the vacancy and if any person wanted to submit application he could do so by 24.8.2004. A copy of the notice for publication was sent to the Field Kanungo so that the notice may be published in the village through Chowkidar in loud voice and by beat of drum. It was further directed that two copies of the notice be affixed on conspicuous places in the village like Panchayat Ghar and thoroughfare in the presence of witnesses like Sarpanch and Lambardar. The compliance report was also sought. One Ajaib Singh, Chowkidar, effected munadi on 14.8.2004 by beat of drum in the village and copy of the notice was also pasted at the Dharamshala of the village in the presence of the witnesses. The factum of publication was carried in Rojnamcha Wakiayati vide Rapat No. 696, dated 14.8.2004, by the Halqa Patwari. In pursuance of the publication report the Assistant Collector IInd Grade (Naib Tehsildar, Bhawanigarh), passed an order on 24.8.2004, which on translation reads as under:-
"File presented.L.P.A. No. 434 of 2009 3
The report after effecting Mustri munadi has been received and report no. 696 has been entered on 14.8.2004 by Halqa Patwari. Jagdev Singh son of Prithi Singh, Kartar Singh son of Hardev Singh, Gamdoor Singh son of Sadhu Singh residents of Phaguwala have presented their applications. These candidates are directed to produce their respective evidence. File be presented on 6.9.2004 for recording evidence.
Sd/- A.C. IInd Grade."
On the basis of the report received, the District Collector prepared a comparative chart showing the particulars of all the candidates which reads as under:-
" The 1 2 3 4 5 6
Particulars of Candidates (1) Name Jagdev Gamdoor Didar Gurjeet Gurbachan Nachatta Singh Singh Singh Singh Singh Singh (2) Fathers Prithi Singh Sadhu Jora Kartar Visakha Bhagwant Name Singh Singh Singh Singh Singh (3) Vill./ Teh./ Phaguwala/ Phag./ Phag./ Phag./ Phag./ Phag./ Distt. Sangrur/ Sang. Sang. Sang. Sang. Sang.
Sangrur -do- -do- -do- -do- -do-
(4) Age 39 years 38 years 46 25 43 years 40 years
years years
(5) Qualification Illiterate 10th Pass 9th 10+2 B.A. Part II 10th Pass
Pass Pass Pass
(6) Relation Son No No No No relation No relation
with relation relation relation relation
previous
Lambardar
(7) Experience No Exp. No No No No No
(8) Land 39 bighas 5 23 bigha 65 20 68 bigha 29 Kanal 13
biswa 10 biswa bigha bigha Marla in
village
Retgarh
L.P.A. No. 434 of 2009 4
(9) Character Not Not Not Not Not Case No. 77
and Report convicted dated
-do- -do- -do- -do- 26.5.2004
u/s 420,
467, 506/34
IPC P.S.
Bhwanigarh.
(10) Opponent's No remarks No No No No Case No. 77
Remarks Dated
26.5.2004
Bhwanigarh
u/s 420,
467, 506/34
IPC
In whose favour the officer's below have recommended:
(11) S.D.M. --- Gamdoor --- --- --- ---
Singh
(12) Tehsildar --- Gamdoor --- --- --- ---
Singh
(13) Naib --- Gamdoor --- --- --- ---"
Tehsildar Singh
A perusal of the table would show that the Assistant Collector IInd Grade (Naib Tehsildar), Assistant Grade Ist Grade (Tehsildar) and Sub Divisional Magistrate in their separate recommendations favoured the candidature of the appellant-Gamdoor Singh. On 14.2.2005 (P-6) the District Collector passed the following order:-
"After considering the candidature of all the six candidates on merits and after considering the reports of lower officer's it, came to the light that although Shri Didar Singh, Gurjeet Singh, Gurbachan Singh and Nachattar Singh had given their application's after the expiry of the date mentioned in Munadi even than they were allowed to lead their respective evidence and their applications were deeply scrutinized by the lower officers. But from all the candidates no one was found to be competent enough by the lower Revenue officers for L.P.A. No. 434 of 2009 5 the post of Lambardar. Inspite of all that a case bearing no. 77 dated 26.5.2004 has been registered against Nachattar at P.S. Bhawanigarh under section 420, 467, 506 and 34 I.P.C. Due to these reasons from the above said four candidates no one can be appointed for the post of Lambardar. So both the remaining candidates i.e. Jagdev Singh and Gamdoor Singh are in field for the post of Lambardar. Jagdev Singh is an illiterate person, even though he is the son of deceased Prithi Singh Lambardar, but due to his illiteracy he is not competent to become Lambardar because some times clever persons used to take undue advantage of his illiteracy by getting false verifications and used to get their work done and the concerned Lambardar has to bear losses due to his illiteracy. So as a result of this, it is not for the welfare of the public to appoint Jagdev Singh as Lambardar. So after considering all the factors, Gamdoor Singh candidate who is 10th pass and is Ex. Sarpanch of village, young man and also a transporter is considered as competent to become Lambardar, about whom all the lower revenue officials have recommended his name for the appointment as Lambardar. So Gamdoor Singh candidate of Phaguwala appointed as Lambardar in place of Pirthi Singh deceased Lambardar and he is bound to do all his official duties as Lambardar."
A perusal of the aforesaid order shows that applications of Sarvshri Didar Singh-respondent No. 3, Gurjeet Singh-respondent No. 5, Gurbachan Singh-respondent No. 6 (wrongly mentioned as Gurcharan Singh in the memo of parties) and Nachattar Singh-respondent No. 7 were given after the expiry of the last date i.e. 24.8.2004, however, their applications were considered and they were also allowed to lead evidence. Accordingly, Sanad of Appointment was L.P.A. No. 434 of 2009 6 issued in favour of the appellant-Gamdoor Singh, vide order dated 14.2.2005 (P-7).
Didar Singh-respondent No. 3 challenged the order of the District Collector, dated 14.2.2005, appointing the appellant-Gamdoor Singh as Lambardar in an appeal under Section 15 of the Punjab Land Revenue Act, 1887 (for brevity, 'the Act'). The Divisional Commissioner vide her order dated 27.9.2005 (P-8) upheld the order of the District Collector by opining that the choice of the District Collector ordinarily should not be interfered with until and unless a grave illegality is committed by him in appointment of Lambardar. The order passed by the Divisional Commissioner was further challenged by Shri Didar Singh-respondent No. 3 in Revision Petition No. 935 of 2005 before the Financial Commissioner-respondent No. 1. The Financial Commissioner came to the conclusion that only two persons had applied before the last date of 24.8.2004 and the other four persons who had applied after the last date could not have been considered and no reason has been given for condoning the delay. The Financial Commissioner proceeded to entertain a doubt about the authenticity of the proclamation made in the village by beat of drum and held that if the revenue authorities were so sure about the effective proclamation in the village then only those who applied within the prescribed date should have been considered for the post of Lambardar. On the basis of the aforesaid conclusion that proper proclamation was not made in the village, the entire process to fill up the post of Lambardar was declared to have been vitiated. Accordingly, the orders of the District Collector as well as that of the Divisional Commissioner were set aside. The matter was remanded to the District Collector, Sangrur, for fresh decision by carrying out a fresh proclamation in the village giving liberty to the parties to apply afresh.
The aforesaid order passed by the Financial Commissioner has been L.P.A. No. 434 of 2009 7 affirmed by the learned Single Judge holding that there was a procedural lapse on the part of the authorities to receive and entertain applications after the due date. The operative part of the order dated 29.4.2009 passed by the learned Single Judge reads as under:-
"......I find justification in the view taken by the Financial Commissioner. There has been a procedural lapse on the part of the authorities to receive and entertain applications and consider the claim of persons, who did not apply in time. In addition, the Financial Commissioner has doubted if there was proper publication or a notice, as required under the Statute. Even if the Manual does not provide for publication, but requirement of the munadi would only ensure a proper notice, so that all persons interested are given chance to participate. Merely because publication has been asked would not be a ground to interfere in the impugned order in exercise of writ jurisdiction. Since the case has only been remanded, I am not inclined to interfere in the impugned order, especially so when the Financial Commissioner has also observed that there was some serious allegation against the petitioner for fraud and cheating, which would require proper consideration.
Dismissed."
We have heard learned counsel for the parties at length and have perused the record with their able assistance. In order to appreciate the controversy raised it would be profitable to read para 323-A of the Land Administration Manual (for brevity, 'the Manual'), which provide for the procedure required to be followed to fill up the vacancy of Lambardar. The relevant portion of para 323-A of the Manual is reproduced as under:-
"323-A In view of the importance of the duties performed by L.P.A. No. 434 of 2009 8 village headmen, it is imperative that when a post falls vacant, it should be filled as quickly as possible. In cases where the deceased is to be succeeded by his heir, under Land Revenue Rule 17(ii), and no other candidate is forthcoming, no reference need be made to the Collector as the appointment is sanctioned by the Assistant Collector, 1st grade. It is advisable, however, that the sanad of appointment should be signed by the Collector himself as this emphasizes the importance of the post, and enhances the value of the sanad.
In cases of disputed succession, the appointment is made by the Collector, and subordinate officials have no direct responsibility with regard to the appointment other than the provision of such accurate information as will enable the Collector to come to a correct decision. In colony areas, where the estates are chiefly or wholly owned by Government and hereditary claims carry but little weight, the emoluments of lambardar are very considerable because of the large sums of land revenue and water-rates to be collected. The value of these posts is still further enhanced in peasant chaks by the allotment of a lambardari square or half-square. It is, therefore all the more desirable that such cases should not be delayed before they reach the Collector. In no circumstances should a greater delay than of two months be permitted to occur between the occurrence of the vacancy and the placing of all the papers before the Collector for his decision. The practice of subordinate officials sending repeatedly for all candidates, to examine them with regard to their claims and qualifications, opens the door to opportunities for extortion. As soon as the vacancy occurs, a report should be made by the patwari L.P.A. No. 434 of 2009 9 to the tahsildar. An early date should then be fixed by the tahsildar or naib-tahsildar on which he will consider and investigate all the applications for the vacant post. He should, if possible, arrange to hold the investigation in or near the estate concerned. The claimants should be given an opportunity of making any objections which they wish to make against the other claimants. A report should be called for from the local police station as to whether there are any written complaints against any of the candidates. In no circumstances should the candidates be called upon to attend the police station for the investigation of their claims or other objections to other claimants. The papers should then be forwarded to the Assistant Collector, 1st grade, who should record his opinion on the file from his own personal knowledge and from the material already collected. He should not delay the case by sending for the claimants. The papers should then be laid before the Collector within two months from the date of the occurrence of the vacancy. The Collector should fix a date for the decision of the case, notify all the claimants and have the date proclaimed in the estate concerned. ......"
A perusal of the aforesaid para would show the importance of the office of Lambardar (Village Headmen). It also speaks of filling up the office of Lambardar at the earliest. The procedure prescribed is that as soon as the vacancy occurres the Patwari should send a report to the Tehsildar and then a date could be fixed by the Assistant Collector 1st Grade (Tehsildar) or Assistant Collector 2nd Grade (Naib Tehsildar) on which he is to consider and investigate all the investigation for the vacancy. Then further procedure for grant of opportunity of making any objections has also been postulated.
When we examine the steps taken in the present case it becomes L.P.A. No. 434 of 2009 10 evident that every step matches to the procedure contemplated by para 323-A of the Manual in minute details. The occurrence of vacancy came to the notice of Collector when an application, dated 9.8.2004, was filed by Jagdev Singh- respondent No. 4, who is son of the deceased Lambardar Prithi Singh. Accordingly, the Assistant Collector IInd Grade (Naib Tehsildar) issued notice that publication be made for receipt of applications and the last date fixed was 24.8.2004 (P-3). The factum of publication was entered as per Rapat Rojnamcha Wakiayati No. 696, dated 14.8.2004. After recording that publication by beat of drum has been made in village Phagguwala by the village chowkidar, namely, Shri Ajaib Singh, it was further authenticated that a copy of the notice was also affixed in the Dharamshala of the village in the presence of Nambardar of the village. The report (P-3) is duly signed by Sarvshri Balwinder Singh, Patwari, Ujjagar Singh, Nambardar, Gurdip Kaur, Sarpanch and thumb mark of Ajaib Singh, Chowkidar. There is then specific order dated 16.9.2004 to that effect passed by the Assistant Collector IInd Grade. Apart from recording the factum of publication it further records that application of the appellant Gamdoor Singh, Jagdev Singh son of deceased Lambardar Pirthi Singh, Kartar Singh son of Hardev Singh, who were residents of the village were received. The evidence in support of their claim was recorded. A report regarding character and antecedents of the appellant-Gamdoor Singh and Jagdev Singh-respondent No. 4 from Police Station Bhawanigarh were obtained. Their names were duly recommended by the police as there was no criminal case. The statements of other witnesses in support of candidature of Kartar Singh were also recorded. Further proceedings were held on 30.11.2004 by the Assistant Collector Ist Grade (as is evident from Annexure P-5) where the claim of Didar Singh, Gurjeet Singh, Nachhatar Singh and Gurcharan Singh, who had applied late, were also considered. They also produced their evidence in support of their respective L.P.A. No. 434 of 2009 11 claims and the Assistant Collector Ist Grade (Tehsildar) made his recommendation. Therefore, a detailed procedure prescribed by Para 323-A of the Manual has been followed. From the record nothing could be elicited to substantiate the conclusion that the publication or munadi was not effectively made in the area. The conclusion reached by the Financial Commissioner on the basis that only two candidates had initially applied and, therefore, there was defect in munadi is not well based. If after publication by beat of drum in loud voice only two persons have applied then in the absence of any connivance and mala fide there cannot be any legal inference that there was defect in the publication by beat of drum or by loud voice, especially when four other persons who applied late have been considered. We did not feel persuaded with the view taken by the Financial Commissioner as upheld by the learned Single Judge that no reason has been given for condoning the delay in entertaining applications of other four persons. It is not disputed that Shri Didar Singh-respondent No. 3 himself is the beneficiary as he filed application after 24.8.2004 and still his case was considered on merit. At his instance the Financial Commissioner could not have interfered with the order passed by the District Collector and as upheld by the Divisional Commissioner appointing the appellant-Gamdoor Singh as Lambardar.
It is also well settled that by virtue of Rule 15 of the Punjab Land Revenue Lambardari Rules, 1908, various factors are required to be taken into account which are (a) hereditary claims; (b) property in the estate possessed by the candidate to secure the recovery of land revenue; (c) services rendered to the State himself or by his family; and (d) his personal influence, character, ability and freedom from indebtedness. As long as the aforementioned factors have been taken into account it could not be concluded that the finding of the District Collector were perverse. It could not be shown by Shri Didar Singh-respondent L.P.A. No. 434 of 2009 12 No. 3 that the District Collector while taking a decision failed to take into account the relevant factors or based its decision on irrelevant factors which were not germane of Rule 15. The revisionery jurisdiction conferred on the Financial Commissioner under Section 16 of the Act confers only limited power to examine any violation of principles of natural justice or procedural lapse. It follows that such a conclusion has to be based on material available on record. There is no allegation at any stage made before the Collector that publication by beat of drum and by reason of loud voice was merely paper transaction or an act of fraud in order to limit the consideration at the instance of one or the other candidate. Moreover, the candidature of Shri Didar Singh-respondent No. 3 was considered although he had applied after last date. Merely because two applications were filed would not constitute a valid ground to infer that publication was defective. Such a presumption could lead to disastrous results unless there is evidence on record of some conspiracy, mala fide and fraud. It is in the aforesaid facts and circumstances that the power of the revisional court are required to be examined. The mind of the Financial Commissioner is not supported by record and, hence, the order passed by the learned Single Judge can also not be accepted. Hon'ble the Supreme Court in a recent judgment rendered in the case of Mahavir Singh v. Khiali Ram, (2009) 3 SCC 439, has held that the appointment made by the District Collector on the basis of consideration of antecedents of all the candidates should not be interfered with unless it is concluded that the order of the Collector was perverse or suffer from patent illegalities or legal infirmities. In para 16 & 17 of the judgment reiterating the principle laid down in earlier decisions quoted in the preceding paras, their Lordships' has concluded the legal position as under:-
"16. The High Court while exercising its jurisdiction under Article 226 of the Constitution of India is basically concerned with the L.P.A. No. 434 of 2009 13 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- à-vis respondent No. 1 committed an error in his decision making process. The principles of natural justice have been complied with. Procedure laid down in the Rules had also been complied with. It is also not 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 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 furthermore took into consideration the fact that the Naib Tehsildar, Hansi had also recommended his name. Even the Circle Revenue Officer had recommended therefor.
17. 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 considerations or on irrelevant factors not germane therefor."
In the light of the aforesaid principle by no stretch of imagination it could be concluded that there was any procedural lapse committed by the Assistant Collector IInd Grade (Naib Tehsildar), Assistant Collector Ist Grade (Tehsildar), Sub Divisional Magistrate and District Collector. As already noticed, all the steps in pursuance to para 323-A of the Manual have been L.P.A. No. 434 of 2009 14 religiously taken. The District Collector has considered the case of all the six candidates in juxtaposition of their details with the help of a table which has made their comparison easier and convenient. The appellant-Gamdoor Singh is 38 years of age as compared to Shri Didar Singh-respondent No. 3, who is 46 years of age. The qualification of the appellant-Gamdoor Singh is 10th pass whereas Shri Didar Singh-respondent No. 3 is 9th pass. Both of the candidates have no hereditary claim and no experience. The appellant had 23 Bighas 10 Biswas of land whereas respondent No. 3 has 65 Bighas of land. Both of them had no case registered nor any remarks by the police. However, the case of the appellant-Gamdoor Singh was recommended by Sub Divisional Magistrate, Tehsildar and Naib Tehsildar. The District Collector in his order has found that the name of Shri Didar Singh-respondent No. 3 has not been recommended by any of the three revenue officers whereas the name of the appellant was recommended by all the three. The son of the deceased Lambardar, namely, Jagdev Singh was found to be illiterate and the District Collector has recorded that on account of his illiteracy cleaver persons may take advantage of the same by getting false verification and by getting their work done which may result into losses. Therefore, the appointment of such a person was not considered in larger public interest. The appellant was found more suitable as he was Sarpanch of the village, young man and also a transporter. He fulfilled all the requirements of Rule 15 and has been rightly appointed by the District Collector.
As a sequel to the above discussion, the order of the learned Single Judge, dated 29.4.2009 and that of the Financial Commissioner-respondent No. 1, dated 11.2.2009 (P-1) are set aside and those of the District Collector are restored. In the peculiar facts and circumstances of the case we award no costs.
(M.M. KUMAR)
L.P.A. No. 434 of 2009 15
JUDGE
(JASWANT SINGH)
October 7, 2009 JUDGE
Pkapoor