CWP No.9301 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.9301 of 2008 Date of decision:20.08.2010 Suresh Kumar ...... Petitioner VERSUS State of Haryana through Financial Commissioner, Haryana, Haryana Civil Secretariat, Chandigarh and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA. Present: Mr.Raghujeet Singh Madan, Advocate for the petitioner. Mr.Gagandeep S.Wasu, Sr.D.A.G., Haryana for respondents no.1 and 2. Mr.Sanjay Verma, Advocate for respondent no.3. ***** RAJIVE BHALLA.J The petitioner prays for issuance of a writ in the nature of certiorari for quashing the orders dated 22.01.2008, 14.02.2007 and 21.04.2005, passed by the Financial Commissioner, Haryana, Chandigarh, the Commissioner, Ambala and the Collector, Yamuna Nagar, appointed Kamil Hassan, respondent no.3 as the Lambardar of villages Khizrabad and Bombaypur. Upon the demise of the incumbent Lambardar, applications were invited from eligible candidates for selection to the post of Lambardar of villages Khizrabad and Bombaypur. The Collector, Yamuna Nagar, appointed Kamil Hassan, respondent no.3 as the Lambardar. The petitioner filed an appeal which was accepted by the Commissioner and the matter was remitted to the Collector to determine whether respondent no.3 is running a general store at village Khizrabad. Kamil Hassan, respondent no.3, filed a revision before the CWP No.9301 of 2008 -2- Financial Commissioner, who vide order dated 21.08.2002, affirmed the order passed by the Commissioner but directed the Collector to verify whether respondent no.3 runs a shop at Khizrabad. The Financial Commissioner, also held that if respondent no.3 does not run a shop at Khizrabad, he would be appointed as the Lambardar and if he is found to be running a shop at Khizrabad, the Collector, shall re-hear the matter and decide it afresh. In compliance with the directions issued by the Financial Commissioner, the Collector, directed the Tehsildar Chhachhrauli, to submit a report whether respondent no.3 runs a shop at village Khizrabad. The Tehsildar, submitted his report dated 13.08.2003 to the effect that the shop at Khizrabad is being run by respondent no.3's son. The Collector accepted the report and and appointed respondent no.3 as the Lambardar. Aggrieved by this order, the petitioner filed an appeal which was dismissed by the Commissioner, Ambala. A revision filed by the petitioner before the Financial Commissioner, met the same fate. Counsel for the petitioner submits that the report submitted by the Tehsildar is incorrect as on the date of the report respondent no.3's son was 15 years old. The entry in the ration card, issued in the year 2005 records the age of respondent no.3's son as 18. The rent agreement and the bills in the name of respondent no.3's son are manipulated and have been procured to create false evidence. The shopkeepers of the area have filed affidavits clearly deposing that respondent no.3 is running the shop but the affidavits have been ignored. It is submitted that in view of these illegalities, the impugned orders should be set aside. Counsel for respondent no.3 submits that findings of fact, CWP No.9301 of 2008 -3- recorded by the Collector, having been affirmed by the Commissioner and the Financial Commissioner, should not be set aside. It is further submitted that the petitioner's allegation with respect to the age of respondent no.3's son is factually incorrect and the affidavits submitted by the shopkeepers have been prepared with the object of fortifying the false assertions made by the petitioner. It is further submitted that the entry with respect to age in the ration card, is not legal evidence of date of birth and is therefore, irrelevant. I have heard counsel for the petitioner and perused the impugned orders. The Financial Commissioner, vide his order dated 21.08.2002 remitted the matter to the Collector, in the following terms: - “Apparently, the appellant is eligible as pointed out by the Collector. However, there is one fact which needs to be verified, i.e. whether the appellant runs a shop at Khizrabad. If he does that, there is hardly any difference between the person of Khizrabad and the appellant. The fact whether the respondent runs a shop at Khizrabad needs to be verified. If it is proved that he does not runs a business at Khizrabad, the appellant should be appointed Lambardar. In case, he does business, there, the Collector should once again hear the parties and decide the case on merits. To that extent, the order of the Commissioner is modified." In compliance with this order, the Collector directed the Tehsildar, Chhachhrauli, to submit a report whether Kamil Hassan, respondent no.3, is running a shop in village Khizrabad. The dispute in the present case is whether Kamil Hassan, respondent no.3 runs a shop at Khizrabad and whether the report submitted by the Tehsildar, is legal and valid. The report prepared by the Tehsildar, is based upon a rent agreement executed by the landlord Ravinder Kumar CWP No.9301 of 2008 -4- Garg, and Khurshid Ahmad the son of Kamil Hassan and upon bills of goods purchased from wholesalers by Khurshid Ahmad. If true this report would entitle respondent no.3 to be appointed as the Lambardar. The ration card dated 18.05.2005, which has not been denied by respondent no.3, contains an entry that Khurshid Ahmad is 18 years old. The Tehsildar submitted his report on 13.08.2003. Kamil Hassan was therefore, 15 years of age on the date of the report. It prima facie appears that the rent agreement and the bills have been manipulated after the matter was remanded by the Financial Commissioner, on 21.08.2002. This significant aspect has been ignored by the revenue authorities. In addition, the petitioner has appended affidavits, Annexure P-7 to P-10 duly sworn by shopkeepers of the area, deposing therein that Kamil Hassan runs a general store in Khizrabad. Annexure P-11 is a letter written by shopkeepers and villagers of Rai Market, Khizrabad, informing the Deputy Commissioner, that Kamil Hassan runs a shop in the name of Bombay General Store in Rai Market, Khizrabad. The affidavits were filed before the Collector but were neither considered nor adverted to. As a general rule, this court would refrain from interfering with findings of fact but as the entry in the ration card and the affidavits have a material bearing on the dispute, it would be appropriate to call upon the Financial Commissioner to re-consider the matter. In view of what has been stated hereinabove, the writ petition is partly allowed, the order dated 22.01.2008 is set aside and the matter is remitted to the Financial Commissioner, to hold a detailed inquiry into the report submitted by the Tehsildar and if thereafter, it is held that Kamil Hassan does not run a shop in Khizrabad, affirm his appointment but if not CWP No.9301 of 2008 -5- so held, pass appropriate orders in accordance with law after re-considering the merits of all parties concerned. Parties are directed to appear before the Financial Commissioner, Haryana, Chandigarh, on 27.09.2010. 08.2010 [RAJIVE BHALLA] shamsher JUDGE