GH ABBAS Vs. STATE

JUDGEMENT

(1.) THE case of the petitioner is that he was appointed Lambardar of villages Chhajla and Uchad by the Tehsildar, Mendhar. This order was confirmed by the Deputy Commissioner, Poonch on 15 -12 -1984. However, his appointment was challenged by respondent -4 before the Divisional Commissioner, Jammu. By his order dated 06 -02 -1987, Divisional Commissioner recommended to the Financial Commissioner that his appointment be cancelled. The Financial Commissioner by his order dated 11 -10 -1991 accepted the recommendation of Divisional Commissioner and directed the Deputy Commissioner, Poonch to make appointment of Lambardars strictly in accordance with the rules. It is this order of the Financial Commissioner which is impugned in this petition.

(2.) IT is admitted by the petitioner that he had earlier challenged the order of Divisional Commissioner in WP No. 246/87 which was dismissed by a learned Single Bench of this court on 26 -11 -1991. The question involved in the petition is whether the Financial commissioner has exercised jurisdiction not vested in him or order passed by him suffers from any other illegality. The Divisional Commissioner in his order dated 06 -02 -1987 has dealt with the controversy at length by observing as under: - There is no record to show that villages Chhajla and Uchad have been amalgamated under any valid authority for the purpose of appointment of Lambardar. Rather the parties have produced the attestation of the patwari concerned about the position of appointment of Lambardar for these two villages. It is not controverted by any of the parties that village Chhajla and Uchad have six parties each and therefore, each of the villages qualified for appointment of a separate Lambardar. It is a matter of record that the jurisdiction of a Lambardar is according to the position available in Settlement Register. Unless some changes are concisely brought about in the position with valid orders. The perusal of Misal Haquiat for the year 1961 -62 shows that village Uchad constituted separate constituency for the purposes of appointment as Lambardar from Chhajla. Further record available with the case shows that it was only in the year 1971 -72 that Sh Abdul Gani came to hold the post of both the villages Chhajla and Uchad as Lambardar. It is not clear under whose authority the two areas had been amalgamated from one unit. Without any specific authority to show the amalgamation both the village as on list, it cannot be taken that the two areas would be taken as one unit for the purposes of appointment of Lambardar. This particular aspect has also escaped the notice of the Deputy Commissioner as well as Tehsildar while finalising the appointment of Lambardar. This aspect was very relevant particularly in view of the fact that there is a dispute regarding the very aspect of appointment of one person as Lambardar for two villages. In view of the fact that villagers of Uchad have objected to the appointment of a resident of village Chhajla as Lambardar of both the places, it was important and pertinent to have ascertained the correct position about the eligibility of one person being considered for appointment for both the villages. Such appointment without any valid authority is violative of and militate as against the provision as envisaged in rule -3 which stipulated that the person appointed as Lambardar must belong to the same constituency for which he is being selected as Lambardar. For the aforesaid reasons, I find that nomination made by the Tehsildar and confirmed by Deputy Commissioner regarding selection of Ghulam Abbas as Lambardar of villages Chajla and Uchad suffers from a serious illegality and is invalid in reference to rule -3 of Lambardar Rules. For this reason it is recommended to the Financial Commissioner that the revision petition may be accepted and the orders passed by the Deputy Commissioner set aside. The case may be remanded to the Deputy Commissioner with the direction that the nomination for the post of Lambardar be made strictly in accordance with the rules and after following the proper procedure. Due regard will be given to requirements as stipulated in the Lambardari Rules.

(3.) THIS recommendation of the Divisional Commissioner was accepted by the Financial Commissioner who directed as under: - The subject matter of this revision petition is the order dated 15 -12 -1984 of Deputy Commissioner Poonch whereby he had confirmed the appointment of non -applicant as Lambardar of village Chhajla dated 05 -02 -87 from the Divisional Commissioner, Jammu. The Divisional Commissioner Jammu after hearing the parties have observed that the nomination made by the Tehsildar and confirmed by the Deputy Commissioner regarding selection of non -applicant as Lamberdar of village Chhajla and Uchad suffers from a serious illegality and is invalid in reference to Rule 3 of Lambrdari Rules. Accordingly he has recommended that order under revision be set -aside and case remanded to Deputy Commissioner with the direction that the nomination for the post of Lamberdar be made strictly in accordance with the Rules. The case came up for hearing today before me. Both the parties were absent despite date of knowledge. Therefore, the case is being decided on its merits. I have perused the records also gone through the reference made by the learned Divisional Commissioner, I am convinced by the reasons adduced by the learned Divisional Commissioner in his order of reference. Accordingly the revision petition is accepted order under revision is hereby set -aside and case remanded to the Deputy Commissioner Poonch with the direction that the nomination for the post of Lambardar be made strictly in accordance with the rules. The contention of Mr. Lehar is that the power of revision exercised by the Divisional Commissioner and the Financial Commissioner is not traceable to the J&K Lambardari Rules issued vide SRO 363 dated 10 -07 -1980 and therefore, the order impugned is without jurisdiction. It appears the same argument was raised before the Divisional Commissioner who rejected the same by observing as under: - So far as the catenation of the counsel for the respondent regarding maintainability of the present revision application is concerned, it is a fact as per existing rules, no remedy by way of appeal, reviews and revision is available in regard to the matters concerning the appointment of the Lambardari there by way of nomination or by way of general election. Even the procedure to filling up the vacancy on casual basis is treated at par with the above requirement. The remedy as stipulated in rule is available only for temporary vacancies which are by way of substitute arrangements in the event of suspension of Lamberdar. But then this provision shall be invoked if it is established that there is no fundamental infirmity regarding the eligibility of the person who has been nominated as the Lamberdar of the area. If a person appointed as Lamberdar does not fulfill the basic qualifications as stipulated in rule -3 of the Lamberdar Rules, then the appointment as such is vitiated and becomes infructuous and invalid. The very purpose of appointment of a Lamberdari in accordance with the rules presupposes that he fulfills all the basic requirements and criterion as stipulated under rules. Further examination of the rules clearly indicates that a Lambardar is liable for dismissal if he suffers from any of disqualification as indicated in rule -3. To this extent it is apparently clear that where the appointment of Lambardar suffers from the basic qualification as envisaged in rule -3, then the appointment even if made by following the prescribed procedure can be treated as invalid and without proper form. Therefore, the question of maintainability of present revision application is to be viewed from this stand point. 