Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
Balwant Singh vs State Of Haryana And Others on 20 September, 2000
Author: V Bali
Bench: A B Saharya, V Bali


JUDGMENT

V.K. Bali, J.

1. Challenge in this Letters Patent Appeal filed under Clause X of the Letter Patent is to the judgment dated April, I, 1991 passed by learned Single Judge of this Court in Civil Writ Petition No. 12280 of 1990.

2. The facts, that need a necessary mention, reveal that the appellant herein moved an application for the creation of an additional post of Lambardar for village Ro-han, Sub Tehsil Kalamvali, District Sirsa. It has been his case all through that the Collector, Sirsa conducted a detailed enquiry through his subordinate staff regarding the requirement and administrative advisability for creating an additional post and on the basis of the said enquiry, vide order dated March 1, 1988/May 16, 1988, the Collector, Sirsa, requested the Commissioner, Hisar Division, Hisar to create an additional post of Lambardar for village Rohan according to the rules. Relevant part of the memo dated March 1, 1988/May 16, 1988, which has been annexed with the petition as Annexure P-1, reads thus :-

“A detailed enquiry has been conducted in this matter. The total amount of Abiana of the village is Rs. 41181.90 and the land revenue is Rs. 7561.20. According to the Punjab Land Revenue Rules, New Edition, 1975, page 120, there should be one Lambardar for every twenty Rectangles of land i.e. 500 acres of land. The area of this village is 1887 acres and it is, therefore, appropriate to create an additional post of Lambardar for village Rohan.

Keeping in view the aforesaid circumstances, you are requested to kindly create an additional post of Lambardar for village Rohan according to rules.” 3. Inasmuch as the Commissioner had not taken any decision on the recommendations of the Collector, An-nexure P-l for some time, the Collector again requested the Commissioner vide memo dated July 5, 1988 to create an addilional post of Lambardar for village Rohan. A copy of this communication has been annexed with the writ petition as Annexure P-2. The contents of the communication aforesaid would rather reveal that there was need of three Lambardars. One Lambardar, i.e. respondent No. 4 was already in position and request of me Collector was to create another post of Lambardar. It had also been mentioned in the communication aforesaid that population of persons belonging to Scheduled Caste of village Rohan was 295 whereas the population of persons belonging to Backward Class was about 42 and there was no Lambardar for these cases and mat separate proceedings were being taken for creation of post of Harijan Lambardar, the file whereof was to be forwarded to the Commissioner shortly. It was then reiterated that the population of village was 1845 and total area was 1887 acres whereas, according to Rule 14 of the Punjab Land Revenue Rules, one Lambardar could be appointed for an area of 500 acres and, thus, three Lambardars could easily be appointed for the area of 1887 acres. As communications, Annexures P1 and P2 had not received the attention of the Commissioner for some time, yet another request was sent to him by the Collector vide letter dated August 24, 1988, Annexure P-3. Request for creation of additional post of Lambardar was reiterated. Relevant part of communication, Annexure P-3, reads thus:

“Kindly take the trouble of perusing the heading “The number of Lambardars required in a village” of Rule 14 of the Punjab Land Revenue Act, from which it is evident that it is necessary that there should be 20 Rectangles of land for the appointment of one Lambardar, i.e., this has been taken as a yard slick. There are 25 acres in one Rectangle of land and it was, therefore, requested for the creation of one additional post of Lambardar on the basis of 500 acres of land; You are, therefore, requested in the aforesaid circumstances, to create an additional post of Lambardar for village Rohan,”

4. It is the case of appellant that when the subordinate staff of the Collector has submitted its report, position in neighbouring village Desu Khurd had also been

taken into consideration. As per report, Annexure P-4, population of village Desu Khurd, Hadbast No. 170 was about 549 and the Abiana demand of Kharif 1988 was Rs. 6456.65 and the area was 1013 acres. There were two Lambardars in the village as per the aforesaid report. On the basis of the three successive recommendations made by the Collector, based upon a thorough enquiry conducted in the matter by his subordinate staff, it is further the case of appellant, that Commissioner exercised his power under Rule 14(1) of the Punjab Land Revenue Rules read with Section 28 of the Punjab Land Revenue Act, 1887 and gave approval for the creation of an additional post of Lambardar for the aforesaid village vide order dated October 10, 1988. This order was, however, not to the liking of respondent No. 4-Hazura Singh, who challenged the same before the Financial Commissioner on the sole ground that while creating an additional post of Lambardar, he was not given any opportunity of hearing. On the aforesaid sole plea of respondent-Hazura Singh, the matter was remanded to the Commissioner vide order dated March 17, 1989 for fresh decision after giving an opportunity of hearing to the said respondent. After remand, me Commissioner, after giving an Opportunity of hearing to all concerned, again ordered for creation of an additional post of Lambardar of village Rohan vide order dated July 13, 1989. This was again challenged by respondent-Hazura Singh before the Financial Commissioner by way of appeal, resulting into reversal of order of Commissioner, which was ultimately impugned in Civil Writ Petition No. 12280 of 1990, thus, giving rise to present appeal.

5. While dismissing the writ petition, that, as mentioned above, came to be filed against the impugned orders passed by the Financial Commissioner on March 28, 1990, teamed Single Judge observed that “as I read it, Rule 4 only embodies an enabling provision by virtue of which it is competent for the Commissioner to determine the number of headmen (Lambar-dars). It also enables the Financial Commissioner to reduce Ihe number of headmen. However, I find it difficult to read into this rule a right which may entitle a citizen to claim the issue of a writ of mandamus commanding the State or the appropriate authority to create an additional post. These are matters of policy. The Court has neither the factual data nor the know-how to determine the number of posts. It is best to leave it to the authorities concerned.”

6. After interpreting rule 14, learned Single Judge then proceeded to hold that whereas the Commissioner, on consideration of the matter, had come to the conclusion that a case for creation of additional post of Lambardar was made out, the Financial Commissioner came to a contrary view. In the process, it could not be urged that any provision of law had been violated and further that the appellant had no indefeasible right as also that the order of Financial Commissioner did not violate any provision of law. On yet another observation made by learned Single Judge that the matter involved appreciation of facts which is not the function

of the High Court, the writ petition, as mentioned above, was dismissed.

7. Mr. Pardeep Bhandari, learned counsel for the appellant, vehemently contends that Rule 14 of the Punjab Land Revenue Rules, in clear terms, vests a power with the Commissioner to increase the number of Lambardars, which had since already been fixed but in case there is need to reduce the number of Lambardars already fixed, such a power can be exercised only by the Financial Commissioner. Rule 4, thus, cannot be said to be an enabling rule by virtue of which it may be competent for the Commissioner to determine the number of headmen as the said number already stands determined, further contends the learned counsel. The finding of learned Single Judge that it was difficult to read into Rule 14 a right which may entitle a citizen to claim a writ of mandamus commanding the State or appropriate authority to create an additional post of headman has also been seriously contested. Mr. Bhandari contends that a citizen, appellant herein, had not demanded the right for the first time in an original lis by way of writ petition under Article 226 of the Constitution of India. This right had since already been demanded from the competent authorities and the issue before the learned Single Judge was only with regard to validity of the impugned order vide which such a decision, already taken in favour of the appellant, had since been set aside by the Financial Commissioner. With regard to observation of learned Single Judge that such a decision involves appreciation of facts, which is not the function of High Court in its writ jurisdiction, learned counsel has canvassed before us that present was not a case of appreciation of facts but of non-appreciation of facts, as were relevant to decide the controversy in issue.

8. Inasmuch as for the reasons to be recorded in succeeding paragraphs, we find considerable merit in the contentions of the learned counsel representing the appellant, as fully detailed above, we do not wish to go into the other points raised by him, seeking setting aside of orders passed by the Financial Commissioner and learned Single Judge and to restore the one passed by the Commissioner. We may, however, simply men-lion that the other contention of Mr. Bhandari is that creation of an additional post of Lambardar is an administrative matter and against such an order, no appeal or revision was competent before the Financial Commissioner. Order passed by the Financial Commissioner is, thus, without jurisdiction. In support of his aforesaid contention, learned counsel has referred to Section 16 of the Punjab Land Revenue Act dealing with the revisional powers of Financial Commissioner, who, at any time, may call for the records of any case, pending or disposed or by any revenue officer under his control and pass such orders as he may think fit. The power of revision is competent with regard to a case pending or disposed of by a revenue officer and in his capacity as Financial Commissioner, while dealing under Rule 14 of the Punjab Land Revenue Rules, that vests the Commissioner an administrative power, it

could not be said by any stretch of imagination that it was a case decided by a revenue officer. Yet another contention of learned counsel for the appellant has been that once a person is appointed as a Lambardar, he holds a civil post and it is only by a procedure, required for removing a person from civil post, (hat the order of the Commissioner, appointing the appellant as Lambardar could be set aside. As mentioned above, we are not going into these questions in view of the fact that we find substance in the contentions of learned counsel noted earlier. We may, however, mention, in passing, that power of the Financial Commissioner to interfere in revision against an order passed by the Commissioner deciding an administrative matter, prima facie, appears to be doubtful.

9. Reverting to the earlier contentions of Mr. Bhandari, it shall be seen that Rule 14(i) of the Punjab Land Revenue Rules, has necessarily to be divided in two parts. Whereas, first part deals with appointment of sufficient number of headmen for every estate, the other part of the rule deals with increasing the ceiling of number of headmen, once appointed, which can be done only by the Commissioner and reducing the same only by the Financial Commissioner. What we have said above would be clear from reading of Rule 14(i) which runs thus:

“14(i) A sufficient number of headmen, shall be appointed to every estate and this number when once fixed shall not be increased except by the or-der of the Commissioner, nor be reduced except by the order of the Financial Commissioner,”

10. This Court is of the view that the number of Lam-bardars stands already fixed and if circumstances may so demand, whereas the Commissioner can order increase therein, Financial Commissioner can order reduction in the said number. It cannot, thus, be said that Rule 14 only embodies an enabling provision, by virtue of which it may be competent for the Commissioner to determine the number of headmen. To reiterate, the number stands already determined. Further, it is not a case where appellant for the first time was demanding creation of an additional post. Such a demand, as is clear from the narration of facts, as given above, was made to the concerned and appropriate authorities. The appellant had not maintained the writ in the nature of mandamus commanding the State or appropriate authorities to create an additional post, as has been observed by the learned Single Judge. His petition in fact was to seek a writ in the nature of certio-rari so as to quash orders passed by the Financial Commissioner, reversing the one passed by the Commissioner. Inasmuch as the High Court was not to determine the number of posts, observation of learned Single Judge that this being a matter of policy and the High Court not having factual data nor know-how to determine the number of posts, it was best to be left to ihe authorities concerned, does not, in our view, fit in to the things at all.

11. Coming now to the factual aspect of the case, it shall be seen that the real controversy and the core issue were left untouched and, therefore, undecided, both by the Financial Commissioner as well as learned Single Judge. There were, as many as, three reports, Annexure P-1, dated March 1, 1988/May 16, An-nexure P-2, July 5, 1988 and Annexure P-3, dated August 23, 1988 respectively recommending creation of additional post of Lambardar. These reports, on undisputed assertions made in the petition, came about on investigations conducted but the subordinate staff of the Collector. The authenticity of these reports was never questioned at any stage. Not only that a detailed enquiry was conducted by cogent grounds, based upon Punjab Land Revenue Rules, necessitating the creation of additional post, were specifically mentioned in these reports and yet, the Financial Commissioner, in his order dated March 28, 1990 without dealing with any of these reports, simply came to the conclusion which, with a view lo demonstrate that findings contrary to the records were returned, without adverting to the same, need to be reproduced. Same runs thus :

“However, learned Commissioner, contrary to assessment made by the Collector, has chosen to create additional Lambardari on the ground that the present Lambardar has been involved in criminal cases.

Observing thereafter that the present Lambardar actually stands acquitted in these cases and that, in any case, if he was to be removed and the appellant appointed in his place, case for removal could have been made out by the Collector and that since Hazura Singh had been discharging his duties satisfactorily and there was no dues outstanding and that the revenue demand had in fact got reduced, order of Commissioner was set aside. As mentioned above, insofar as learned Single Judge is concerned, the factual position was not at all examined by observing that such issues, as the one in hand, involve appreciation of facts, which is not the function of High Court. Learned Single Judge, once again, did not at all refer to the recommendations made by the Collector from time to time which have been detailed above. Suffice it. however, to say that these reports contained the relevant data with the relevant rules, justifying creation of yet another post of Lambardar which, as referred to above, had remained un-controverted throughout. A complete case for creation of additional post of Lambardar really emerges from the three reports of the Collector and the Commissioner, in our view, was absolutely right in ordering creation of another post of Lambardar. Involvement of respondent- Hazura Singh in criminal cases and his acquittal, in our view, was not relevant for determining the justification for creatingan additional post of Lambardar. We may agree with the learned Financial Commissioner that involvement of Hazura Singh in criminal cases could be relevant for the purpose of his removal but that does not automatically shut out a demand of creation of additional post of Lambardar which is based upon entirely different facts.

12. Learned counsel for the parties have cited Hari Singh v. Financial Commissioner, Revenue Haryana and another, 1982 PLJ 320, Girwar v. Financial Commissioner, Haryana and others, 1997(2) RCR (Civil) 115 and Tek Ram v. Financial Commissioner (Revenue), Haryana and others, 1999-1 (121) PLR 668. We find no necessity to deal with these judgments as they are not relevant for deciding ihe controversy in issue.

13. Finding merit in this appeal, we allow the same. Resultantly, orders passed by the Financial Commissioner dated March 28, 1990 and the one passed by the learned Single Judge dated April 1, 1991 are set aside and writ petition filed by the appellant is allowed. In view of the fact that, even though a trivial issue, as the one in hand, has remained pending for more than one and half decades, wiih different results at different stages, parties should be left to bear their own costs. So ordered.

14. Before we may part with this order, we would like to mention that Civil Misc. No. 1241 of 2000 was filed by respondent Hazura Singh. Prayer in this application is for placing on records his affidavit. In the affidavit, it has been mentioned that during the pendency of the appeal, State of Haryana has created two more offices of Lambardar on February 2, 1994 of village Rohan and the present appeal is pending for additional post of headman. On the basis of this affidavit, it was been urged by Mr. Dogra, learned counsel for the respon-dent-Hazura Singh that this appeal has become infruc-tuous. We find no merit in the contention of Mr. Dogra, noted above. Quite to the contrary, decision of the Government to create two additional posts of Lambardar really suggests that there was need when the Collector made recommendations to create another post of Lambardar. No separate orders are required to be passed on this application.

15. Appeal allowed.


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