IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.19358 of 2010 DATE OF DECISION : FEBRUARY 24, 2011 TARSEM SINGH ....... PETITIONER(S) VERSUS FINANCIAL COMMISSIONER, HARYANA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT:Mr. CM Munjal, Advocate, for the petitioner(s). Mr. BS Saini, Sr. DAG, Haryana. AJAI LAMBA, J. (Oral) 1 Petitioner-Tarsem Singh and respondent No.3 Akshey Kumar have been competing for the post of Lambardar for Village Gohra, Tehsil and District Kaithal. Respondent No.3 was appointed as Lambardar by the Collector vide order dated 15.9.2009 (Annexure P-1). The appeal of the petitioner has been allowed by the Commissioner vide order dated 27.1.2010 (Annexure P-2). Respondent No.3 went up in appeal, which has been allowed by the Financial Commissioner vide order dated 17.8.2010 (Annexure P-3), thereby appointing respondent Civil Writ Petition No.19358 of 2010 2 No.3 as Lambardar. The petitioner, by virtue of this petition, has challenged orders (Annexures P-1 and P-3) and claims a better right to be appointed as Lambardar. 2 So far as merits/demerits are concerned, the petitioner is 40 years of age; 10th class pass; owns 50 kanals 11 marlas of land; has done social service by way of getting deposits in small savings schemes, being a member of the Red Cross Society; and has been giving donations to different institutions. The name of the petitioner, on consideration of various aspects, was recommended to be appointed as Lambardar by the Naib Tehsildar and Sub Divisional Officer (Civil). 3 Respondent No.3 is 24 years of age, 10th class pass and owns 9 kanals 19 marlas of land. Respondent No.3 does not have to his credit any social service. Respondent No.3, however, claims advantage of hereditary claim. 4 So far as demerits are concerned, while the petitioner has been penalised under the Canal Act for drawing water in excess to his share, learned counsel for the petitioner contends that all the co-sharers were penalised and the petitioner happened to be one of them. In matters of irrigation, it is a normal trend in the villages to take water from the watercourse/canal, considering the Civil Writ Petition No.19358 of 2010 3 requirement of crop. 5 So far as demerits of respondent No.3 are concerned, an FIR was registered against him, indicating commission of offences under Sections 323, 324, 326, Indian Penal Code. The FIR was sent up for cancellation and respondent No.3 was discharged. Thereafter, the complainant filed a criminal complaint, which was entertained and respondent No.3 has been summoned to stand trial vide order dated 8.4.2008 (Annexure P-5). There has been a subsequent development insomuch as the complaint has been withdrawn by the complainant. 6 The Financial Commissioner, essentially, has interfered with the order of the Commissioner on the ground that the Collector has given a reasoned order and respondent No.3 has the necessary qualification for appointment as Lambardar. The demerits of the candidates are by and large similar, as noticed above. In such circumstances, the choice of the Collector is required to be respected. The Collector has given benefit to respondent No.3 in regard to his hereditary claim. 7 I have considered the contention of the learned counsel for the parties, who have argued the case, in the context of respective merits and demerits of the petitioner and respondent No.3, as noticed above. Civil Writ Petition No.19358 of 2010 4 8 Learned counsel for respondent No.3, rather, has impressed on the court that the hereditary claim is required to be given importance in view of the fact that other para-meters between the petitioner and respondent No.3 have been found to be equal. 9 What is to be seen is whether the Collector has exercised the jurisdiction in appointing respondent No.3 as Lambardar, after taking into account the relevant criteria or not. A perusal of the operative part of order (Annexure P-1) shows that respondent No.3 has been found to be more meritorious because respondent No.3 has experience of Lambardari work, having hereditary claim. 10 In regard to hereditary claim, a reference is required to be made to the judgment of this Court rendered in Bhagwan Singh v. Financial Commissioner, 2008(4) RCR (Civil) 862. In para-4 of the judgment, it has been held that Rule 15(a) of the Punjab Land Revenue Rules, 1909 (for short 'the Rules'), which is pari-materia to Rule 17(ii) of the Rules, and provides for consideration of hereditary claim of a candidate, would violate Articles 14, 15 and 16 of the Constitution of India, and appointment to the post of Lambardar cannot be made on the basis of hereditary claim. This aspect of the matter has not been considered by the Collector. Civil Writ Petition No.19358 of 2010 5 11 Admittedly, respondent No.3 was involved in a criminal case for committing an offence under Section 326, Indian Penal Code. Respondent No.3 was discharged, however, was again summoned by the trial court to stand trial. Subsequently, it appears that there was a compromise between the parties and the complaint has been withdrawn. What cannot be ignored for appointment of a Lambardar is the conduct of respondent No.3, as reflected by the litigation on the criminal side. As against this, the petitioner has has been shown to be involved in drawing water beyond his share. In my considered opinion, it is a relevant circumstance to be taken into account for appointment of a Lambardar, because the Lambardar is required to discharge the duties as given out in Rule 20 of the Rules, as applicable to Haryana. A Lambardar is required to be a popular person to enable him to collect all sums recoverable under land revenue from the estate. He is required to collect rent and other income of common land and account for it to the persons entitled thereto. A Lambardar is required to report to the Tehsildar the death of any government pensioner residing in the estate or the marriage/remarriage of a female, drawing family pension and residing in the estate. A Lambardar is also required to report to the Tehsildar and Civil Writ Petition No.19358 of 2010 6 the Collector all encroachments on and injury to the roads, public streets and Government, Nazul and panchayat land. He is required to carryout orders of the Collector and furnish information. Such functions require the Lambardar to be popular and without any adversary, as it requires interaction to a great extent with the residents of the estate. In my considered opinion, a person who has had criminal conduct, would not be the best choice to discharge functions, as given out in Rule 20 of the Rules. This aspect has also been ignored by the Collector. 12 Another aspect which has not been considered by the Collector is the social work and service rendered by the petitioner, as noticed in the earlier part of the order. For appointment of Lambardar under Rule 15 of the Rules, services rendered by the family; strength and importance of the community from which selection of a headman is to be made; services rendered in development programmes; etc., are required to be seen. Respondent No.3 has no such service to his credit. 13 In such circumstances, I am of the considered opinion that the Collector committed an illegality in ignoring the relevant facts and para-meters in recommending respondent No.3 for appointment as Lambardar. Under such circumstances, the order of the Civil Writ Petition No.19358 of 2010 7 Financial Commissioner in upholding the choice of the Collector is also rendered illegal. 14 In view of the above, the petition is allowed. Order dated 17.8.2010 (Annexure P-3), passed by the Financial Commissioner, and order dated 15.9.2009 (Annexure P-1), passed by the Collector are hereby quashed and order dated 27.1.2010 (Annexure P-2), passed by the Commissioner, is upheld. February 24, 2011 ( AJAI LAMBA ) Kang JUDGE 1.To be referred to the Reporters or not? 2.Whether the judgment should be reported in the Digest?