JUDGMENT

JASBIR SINGH, J. (ORAL) –

CMs No. 4340 of 2013 :

1. After hearing counsel for the appellant, application is allowed. Delay of 88 days in re-filing the appeal is hereby condoned.

LPA No. 1699 of 2013 (O & M) :

2. This Letters Patent Appeal has been filed against an order dated 14.8.2012, dismissing CWP No. 10740 of 2011, filed by the appellant, challenging appointment of respondent No. 4 as Lambardar of Village Patla, Tehsil and District Sonepat.

3. As per facts on record, on accrual of post, applications to appoint Lambardar in the above said village, were invited. After reports made by the Field Revenue Staff, before the Collector, three candidates; the appellant, respondent No. 4-Tirath Thakur and respondent No.5-Khem Chand (father of respondent No. 4) emerged as the contesting candidates.

4. It was an allegation against respondent No.4 that he was residing with his father, who had encroached upon the Gram Panchayat's land. It was further alleged that to strengthen his candidature, after proclamation in the village, he had separated from the family and got prepared a separate ration card.

5. So far as the appellant is concerned, it came in the evidence that he was residing in Delhi and with a view to become eligible for the post of Lambardar, he also got his name struck off from the voter's list etc. at Delhi.

6. The Collector, after analysing comparative merits and demerits of both the candidates, appointed respondent No.4 against the post of Lambardar, vide order dated 2.4.2008. In that order, it was observed as under :-

“After hearing all the candidates and from the perusal of material on record, it is apparent that the candidates Tahar Singh and Khem Chand do not reside in the village permanently. Tahar Singh has admitted that he was having a vote at Delhi which has now been got cancelled by him but he could not answer about the telephone and mobile connection at his address of Delhi. And this way, Khem Chand candidate also could not answer about his address of Palwal in his return of Income Tax. These two candidates could be considered only when the other candidate who resides in the village is not available. Otherwise also, Tirath Thakur is more competent than these two candidates namely Tahar Singh and Khem Chand because he is youngest to all and more educated and there is nothing adverse against him that he does not live in the village and 43 persons have come present to get their statements recorded in his favour, thus, he has a good impression in the public also. In the national programs like family planning, his contribution is more and in the small saving schemes, enough participation has been given. As per the police report, he bears a good character. Besides this, Tehsildar and SDO (Civil) have also recommended his name to be appointed as Lambardar. Therefore, in view of the above facts and while keeping into view the recommendations of revenue authorities below, Sh. Tirath Thakur son of Khem Chand is appointed as Lambardar of general caste of village Patla, Tehsil and District Sonepat in place of late Sh. Lakhi Ram son of Sohan Lal, Lambardar.”

7. It was noticed that the appellant was not residing in the village. It was also observed, as a matter of fact, that he resides in Delhi and to say so, reference was made to landline telephone and mobile phone bills, in which address was given of a house situated in Delhi.

8. Against respondent No.5, it was found that he was in unauthorised occupation of the Gram Panchayat's land. Accordingly, his candidature did not find favour before the Collector.

9. Qua respondent No.4, it was noted that he is younger in age and is permanent resident of the village. His name had been recommended by many villagers. He had also taken part in social activities by contributing in the Family Planning Programs and also supporting small saving schemes, his name was also recommended by the Field Revenue Staff.

10. The appellant went in appeal, which was dismissed by the Commissioner on 6.3.2009. He also failed before the Financial Commissioner on 30.4.2009.

11. The appellant came to this Court by filing CWP No. 9926 of 2009, which was disposed of and the Financial Commissioner was directed to hear revision petition filed by the petitioner/appellant afresh. It was directed that let the Financial Commissioner look into allegations of the petitioner/appellant that respondent No.4 along with his father Khem Chand was also in un-authorised occupation of the Gram Panchayat's land and further that he was living with his father, when applications were invited but he separated from the family and got prepared a separate ration card.

12. The matter was again taken up by the Financial Commissioner and vide order dated 12.5.2011, revision petition filed by the appellant, was again dismissed by observing as under :-

“I have gone through the facts and circumstances of this case. The Punjab & Haryana High Court while remanding this case has recorded in detail the contentions of learned counsel for the petitioner about encroachment of pieces of panchayat land by the father and uncles of the respondent. The High Court has observed that arguments of the petitioner regarding respondent's family being encroacher of panchayat land has not been taken into account while deciding the revision petition.

It is correct that as per report of the revenue authorities the father and uncles of the respondent Tirath Thakur have been found to be encroachers of pieces of panchayat land. The father of the respondent has been found to be encroacher of 256 Sq. yards of panchayat land.

A perusal of the orders of the Collector and Commissioner would reveal that while appointing the respondent Tirath Thakur as Lambardar, they have evaluated overall merits of both the candidates. The respondent has been found more meritorious than the petitioner by both Collector as well as Commissioner. His name was also recommended by the subordinate revenue authorities including Tehsildar and SDO (C). Relative demerits of the petitioner have also been discussed by the courts of the Collector and the Commissioner and one of the important demerit which weighed in favour of the respondent is that the petitioner was allegedly residing at Delhi, thus not a resident of the village, which fact is proved on the basis of his telephone/mobile connection of Delhi address and also his name being in the list of the voter list of the Delhi, even though lateron he got his name deleted from the voter list.

Surely encroachment of panchayat land by the relative of the respondent is a factor to be considered against the respondent. However, the Collector when called upon to chose one of the candidates has the choice of either finding both the parties unsuitable for appointment as Lambardar and starting the process of appointment of Lambardar afresh, or he has to choose better of the two candidates keeping in view totality of the circumstances. No single factor, unless it is of too grave a nature can decide the outcome of proceeding before the Collector in the matter of appointment of Lambardar. Collector has to make his choice on the basis of relative facts of both the parties. The person who wish to be appointed as Lambardar may not be the idle option, but still a choice has to be made in the given circumstances. In this case the Collector has chosen to assign less weightage to the fact of relatives of the respondent being encroachers of panchayat land and he has given greater weightage to the fact that petitioner Tahar Singh is not a resident of the village. The Collector has made his choice on the basis of available facts and reports of Tehsildar, SDO (C) and relative merits of the two candidates.

Otherwise also, it is the merits and demerits of the contestants which should be evaluated rather than the demerits of the relative of the candidates. It will be an incorrect application of law if the merits/demerits of relatives of the contestants are given greater weightage rather than that of contestants. Such an interpretation of law is amenable to misuse and varied interpretations. I am not inclined to interpret law in this manner.”

13. It was found as a matter of fact, that so far as the Tirath Thakur is concerned, he is not in possession of even an inch of the Gram Panchayat's land.

14. The petitioner's writ petition was dismissed vide order dated 14.8.2012. Learned Single Judge came to a conclusion that on merits, respondent No.4 is a better candidate. It was further observed that unauthorised occupation on Gram Panchayat's land by father of respondent No.4, cannot be taken against him.

15. We are of the opinion that order passed is perfectly justified. The Field Revenue Staff has reported in favour of respondent No.4, stating that he is permanent resident of the village. It is also a matter of fact that he had not encroached upon any portion of the Gram Panchayat's land.

16. The Collector has looked into the comparative merits and demerits when appointing respondent No.4 as Lambardar of the village and Collector's choice, invariably, is to be respected unless bad in law.

17. At the time of arguments, counsel for the appellant has failed to show any illegality or infirmity in the choice made by the Collector and in the order passed by him.

18. No case is made out to interfere in the orders under challenge.

19. So far as delay in filing the appeal is concerned, no plausible explanation has been furnished.

20. Accordingly, both, the application and the appeal, are dismissed.

Appeal dismissed.

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