GAIND BAI Vs. GULAB CHAND

JUDGEMENT

(1.) THIS second appeal arises out of an appellate decision of the Additional Commissioner, Jaipur, dated 15th December, 1954, in a case relating to appointment of Lambardar.

(2.) WE have heard the learned counsel appearing for the parties and have gone through the record as well. In view of the order that we are making in the case we deliberately refrain from expressing any opinion upon merits at this stage. Mst. Gaindi Bai was the original Lambardar and was removed from that office as she had mortgaged most of her lands. By an order of the Deputy Collector, Deeg, of the former Bharatpur State dated 24-12-1942 Mst. Gaindi was removed from the post of Lambardar and Gulab was appointed in her seat. It was clearly mentioned in the order that as and when Mst. Gaindi and other improve their financial status and redeem the mortgage their request for Lambardari will be duly considered. In 1949 Seho Pratap, Mukhtiar of the appellant, applied before the Collector Bharatpur, for appointment as Lambardar on the ground that the mortgage had been redeemed. The Collector holding that the mortgage was in fact redeemed ordered removal of Gulab from the office of Lambardari and appointed Mst. Gaindi in his place. Gulab went up in appeal before the Additional Commissioner, Jaipur. The learned Additional Commissioner has expressed no opinion on the point as to whether the mortgage, which was responsible for the removal of Mst. Gaindi from the post of Lambardari, had been redeemed or not. He was, however, of the opinion that - "the appointment of female Lambardar based on heredity was an 'unavoidable evil' that a female Lambardar 'could not function without a Sarwarakar'; and that she should not be taken back unless it be 'inevitable'. The considerations which influenced the learned Additional Commissioner are evidently extraneous to the point at issue. The appointment of Lambardar is governed by sec. l67 of the Bharatpur Land Revenue Code. It is clearly provided therein that a female can also be appointed as a Lambardar and that by reason of her sex she is to be allowed a substitute or Sarwarkar to discharge the duties. WE cannot agree with the learned Additional Commissioner that the appointment of a female Lambardar is an 'unavoidable evil. ' No such distinction can be drawn on the basis of sex under the Bharatpur State Land Revenue Code and more so under the present Constitution. The main point which ought to have been considered by the learned Additional Commissioner and which has been ignored by him, is as to whether the mortgage created by Mst. Gaindi and others had been redeemed or not and if so what is its effect upon the present financial status of Mst. Gaindi. The order dated 24-12-1942 of the Deputy Collector, Deeg, itself envisages the "restoration of Lambardar to Mst. Gaindi, in case she be able to redeem the mortgage and improve her finances. The decision of the learned Additional Commissioner is, therefore, untenable. WE would, therefore, allow this appeal, set aside the order of the lower appellate court and remand the case back to it with the direction that the appeal filed before it be reheard and decided afresh in the light of the observations made above. .