IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1652 of 2011(O&M) Date of decision: 08.09.2011 Mansa Ram …..Appellant versus Piare Lal and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Rakesh Gupta, Advocate for the appellant Jasbir Singh, J. (Oral) This appeal has been filed against an order passed by the learned Single Judge on 18.8.2011, vide which, CWP No.3056 of 2009 filed by respondent No.1 was allowed, appointment of the appellant as a Lambardar of village Urlana tehsil Guhla district Kaithal was set aside and the matter was remitted to the Collector for making a fresh appointment. As per facts on record, on accrual of a vacancy, applications were invited. Before the Collector, appellant and respondent No.1 were the contesting candidates. The Collector appointed the respondent No.1 as a Lambardar, however, matter was remitted in appeal and after remand the Collector appointed the appellant as a Lambardar of the village on 31.1.2006. Perusal of the order indicates that without discussing the comparative merits, it was taken against respondent No.1 that he was in an unauthorized occupation of public land and his claim was rejected LPA No.1652 of 2011(O&M) accordingly. The Commissioner and the Financial Commissioner affirmed the order passed by the Collector. Respondent No.1 came to this Court by filing the above said writ petition, which was allowed by the learned Single Judge by observing as under:- “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) 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 cowdung 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- 2 LPA No.1652 of 2011(O&M) 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 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 3 LPA No.1652 of 2011(O&M) 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 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 4 LPA No.1652 of 2011(O&M) 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.” After opining that the authorities below have wrongly noted that respondent No.1 was in an unauthorized occupation of public land, appointment of appellant was set aside and the matter was remitted to the Collector for fresh appointment. We feel that the order passed is perfectly justified. Otherwise also, on merits, if factum of unauthorized occupation is not proved against respondent No.1, he appears to be a better candidate. Be that as it may, the Collector will look in the same. Dismissed. (Jasbir Singh) Judge 08.09.2011 (Augustine George Masih) gk Judge 5