CWP No.3654 of 2013 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

CWP No.3654 of 2013 Date of decision: May 30, 2014

Nawab Ali ...Petitioner

Versus

State of Haryana & others ...Respondents

CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA

Present: Mr. Ravinder Malik, Advocate for the petitioners Mr. Saurabh Mohunta, DAG, Haryana. Mr. Kunal Chhokar, Advocate for respondent No.4.

Rajan Gupta, J. After death of Lambardar of the village, process for appointing a new person was initiated. Proclamation was effected. As some applications were withdrawn, only two candidates remained in the fray.

Tehsildar recommended name of respondent No.4 to Sub Divisional

Magistrate for appointment. He, however, remitted the issue to the

Tehsildar to give a report regarding population of various communities in the village. Aggrieved by the order, respondent No.4 filed appeal before

Commissioner, Ambala Division. After hearing both the parties, said authority allowed the appeal and directed that Sunil Kumar respondent No.4 be appointed as Lambardar of the village. Petitioner challenged the order before Revisional Authority who accepted his plea and set aside the order of the Commissioner observing that he erred in interfering in the order passed by the Collector. Matter was considered afresh by the Collector and following order was passed:- CWP No.3654 of 2013 2

“I have heard the arguments of both counsels, gone through the file properly, the age of both candidates is more or less same, both candidates are land owners, both contributed same interest in the government development work, both have good reputation in the village. On the point of education, the candidate Sunil Kumar is more educated than other candidate Nawab Ali, this candidate is 10th pass, whereas other candidate is 8th pass, and this candidate in addition to the son of the deceased Lambardar is familiar to the work of Lambardari. As per report/record available on the file, the total population of the village is 1455, out of them 530 from Muslim community and 236 Jat, 164 Baniya, 50 Dhiman, 19 Jhivar, 43 Dhobi, 11 Kumbar, 21 Nai, 96 Sardar, 105 Balmiki, 137 Chamar and 73 Gadella community. Three Lambardars are already working in the village from Hindu community, one Sardar Lambardar Dalip Singh, one Harijan Lambardar Phool Chand and one Jat Lambardar Shri Phool Singh. The present candidate Sunil Kumar also belongs to Jat community. There is no Lambardar from Muslim community in the village and population of this community is enough. It is correct correct that post of Lambardari is not based on population of some particular community, rather he is to be appointed on the basis of three categories i.e. General category, backward class and scheduled caste, but there is a force in his argument that the population of Muslim community in the village is sufficient and already three Lambardars from Hindu community are working, the people of other community could get their work done from them, due to this reason, it would be in the interest of justice if a candidate from such community having sufficient population should be appointed, so that the people of that community may not to have depend on other Lambardar for their work to be got done. So, in view of the above circumstances and finding Nawab Ali S/O Abdul Mazid, R/O Village Leda Khedar as a suitable candidate, I hereby appoint him as Lambardar of Village Leda Khedar, Tehsil Chhachrauli in place of deceased Lambardar Dila Ram S/O Bakhtawar Singh (general category). Notification of Lambardari in his name be issued. Copy of the order be sent to the Sub Divisional CWP No.3654 of 2013 3

Officer (Civil), Bilaspur for record. File may be consigned to record.”

Aforesaid order was again challenged before Commissioner,

Ambala Division. Appeal was, however, dismissed. Respondent No.4 thereafter impugned the order before the Financial Commissioner, Haryana who set-aside the order passed by the Commissioner and remanded the case to Collector for initiating fresh proceedings for appointment of Lambardar.

Aggrieved, present writ petition has been filed.

Learned counsel for the petitioner has assailed the order.

According to him, Financial Commissioner erred in setting-aside well reasoned order passed by the Collector. As the order was neither perverse nor illegal, there was no reason to interfere with the same.

Prayer has been opposed by counsel appearing for the respondent. According to him, Financial Commissioner rightly found that

Collector had been swayed by considerations of community, caste and religion while passing the impugned order. Same has been rightly set-aside by the Financial Commissioner with direction to initiate fresh process of selection of Lambardar.

I have heard learned counsel for the parties and given careful thoughts to the facts of the case.

In my considered view, no fault can be found with the reasons given by the Financial Commissioner. He came to the conclusion that reasons given by the Collector while appointing the petitioner, were not only untenable but dangerous. He observed that as there was communal CWP No.3654 of 2013 4 harmony and religious tolerance in the country, Collector could not have based his findings purely on the basis of ratio of the communities in the village. In my considered view, Financial Commissioner rightly allowed the revision petition and remitted the case to the Collector. The observations of the Collector, as reproduced in this order, are not only against law but spirit of the Constitution of India. He has tried to convey that only representatives of particular community would be accessible to that community. This is not the ground reality in the country. By no stretch of imagination, order can be justified under Rule 15 (e) of the Punjab Land

Revenue Rules, 1987. In fact, the order is based on misinterpretation of said rule. Any effort to justify an order which is against the spirit of the

Constitution is unacceptable. It was expected of the Collector to be more cautious while passing the order. His conclusion that a person from a particular community would not be available to other communities and they would not be able to depend upon him, are unacceptable. It appears, the

Collector got unduly swayed by the considerations of caste, community etc.

Order has been rightly set-aside by the Financial Commissioner. Petition is, thus, without any merit and is hereby dismissed.

(RAJAN GUPTA) JUDGE May 30, 2014 'rajpal'

Whether to be referred to reporter? Yes / No