R.N.PRASHER, J. - (1.) THIS is an appeal u/s 13 (c) of the Punjab Land Revenue Act against the order dated 24.4.2007 passed by the Commissioner Hisar Division. The matter relates to appointment of backward class Lambardar for village Shikarpur, Tehsil and District Hisar. The vacancy had arisen on account of death of Backward class Lambardar Shri Mamman Ram on 31.7.2003. There were 29 applicants but at various stages 24 of them withdrew their names and only five applicants remained for consideration. Tehsildar, Hisar considered the relative merits of these five applicants and made a recommendation to SDO (Civil), Hisar in favour of Shri Subhash Chander S/o Shri Maman Ram vide order dated 17.5.2004. The SDO (Civil)-cum-Assistant Collector 1st Grade, Hisar considered these recommendation and vide detailed order dated 25.11.2004 concurred with the recommendation of Tehsildar, Hisar and made a similar recommendation to Collector, Hisar. All the five candidates appeared before Collector, Hisar and were heard by him. Rajesh Kumar s/o Harish Kumar made a submission before the Collector that his merit has not been duly considered by Tehsildar and SDO (Civil). The Collector asked the SDO (Civil) to re-examine the matter and send a recommendation again. The SDO (Civil) sent his recommendations to Collector again on 18.8.2005 and recommended the name of Subhash Chander s/o Maman Ram. The Collector considered these recommendations and vide detailed order dated 18.10.2005 appointed Subhash Chander s/o Maman Ram, the present appellant before me, as Lambardar. An appeal against these orders of the Collector was filed by one of the applicants Diwan Singh S/O Moola Ram before the Commissioner Hisar Division. The Commissioner did not accept the appeal of Diwan Singh but upset the orders of the Collector and appointed another applicant Rajesh Kumar S/O Harish Kumar as Lambardar. The present appeal before me is against these orders of the Commissioner dated 24.4.2007.
(2.) I have heard the Counsel for the appellant and the Counsel for the respondent number 1. Respondent number 2 did not appear in spite of service and ex parte proceedings were ordered against him 20.8.2008. The Counsel for appellant stated that once the Commissioner did not accept the appeal of Diwan Singh, he could not have passed an order in favour of Rajesh Kumar who had not even filed an appeal before him. By not filing an appeal, Rajesh Kumar obviously accepted Collector's orders and therefore he did not seek any relief. The Counsel argued that the Commissioner could not have provided relief to someone who was not even seeking it. The counsel argued that the order of the Commissioner clearly amounts to dismissal of appeal of Diwan Singh and this should result in upholding the order of the Collector. The Counsel submitted that the choice of Collector could be interfered with only for overwhelming reasons and it should be final unless it is patently illegal. He further argued that Commissioner has raised the issues which have not been raised before the Tehsildar, SDO (C) or Collector. It is not understood how Commissioner came to these conclusions. The Counsel cited for example, the issue of appellants' signatures not matching the signatures on receipts and the issue of the present appellants' ownership of seven acres of land. These contentions were never raised before the lower authorities. The Counsel said that the Commissioner has written that the present appellant has not performed his duties as Lambardar responsibly and is careless. On the other hand, the Tehsildar had written that he has good experience of this work and he has been doing the recovery work properly. Similar conclusion had been recorded by the SDO(C). The Collector had also recorded that the present appellant has sufficient experience of the work of Lambardar and had been doing this work satisfactorily. The Counsel said that it not understood how without taking any evidence or expert opinion the Commissioner can come to the conclusions about signatures, ownership of land and satisfactory performance of duties.
(3.) COUNSEL for appellant stated the following authorities in support of his contentions :- i) 1969 PLR 534 where the Hon'ble Punjab and Haryana High Court held that relief can only be given to a person aggrieved who files appeal and in the absence of appeal no relief can be given. However, their Lordships' findings are with specific reference to sub-sections 3 and 4 of Section 21 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation). ii) 1988 PLJ 304. This authority of Financial Commissioner, Haryana is with reference to the Punjab Security of Land Tenures Act where it was held that when a land owner or his heirs did not file any appeal or revision against the order declaring surplus area, the order became final as far as this land owner is concerned. iii) 1982 CLJ(C and Cr) 153 where Hon'ble Punjab and Haryana High Court held that the Court cannot build up a case in favour or against any party when the point is not the subject matter of the issue framed in the case. iv) 1980 PLJ 389 where the Financial Commissioner, Haryana held that in a Lambardari case the Collector's order must not be interfered with unless it is contrary to the rules or is patently perverse. The Financial Commissioner further held that even though the appointment of a Lambardar on the basis of the rule of primogeniture has been held to be unconstitutional yet this is certainly one of the factors to be taken into account under rule 15 of the Land Revenue Rules. v) 1983 PLJ 42 where the Financial Commissioner, Haryana held that normally the son of a deceased Lambardar should rank for consideration unless there is something seriously wrong about his character, antecedents etc. vi) 1990 PLJ 276 where the Financial Commissioner, Haryana held that the choice of Collector should not be interfered with unless it is proved that Collector's reasoning was perverse or that he committed illegality in passing the order. Unless there are overwhelming reasons, the Commissioner coming to a different assumption about relative merits of candidates cannot be considered a justification for setting aside order of the Collector. vii) 2000(2)PLJ 469 where the Hon'ble Punjab and Haryana High Court held that selection of Lambardar has to be made by the Collector and higher authorities can interfere only if the view taken by the Collector is found to be perverse or contrary to law. Their Lordships held that if order passed by Collector is just and reasonable, the Commissioner should not interfere with it. viii) 2005(1)RCR (C) 658 where Hon'ble Punjab and Haryana High Court held that in the matter of appointment of a Lambardar, the choice of the Collector must be regarded and considered final unless the same is against the rules or is perverse. The Counsel argued that based on these authorities the Commissioner could not have taken up the case of Rajesh Kumar who was not even an appellant. The Commissioner could not have brought new issues without any evidence and the Commissioner could not have upset the order of the Collector without clearly showing how that order was perverse or illegal. Lastly having dismissed the appeal of Diwan Singh, the Commissioner could not have passed a new order in the case. The Counsel argued that on these grounds the order of the Commissioner should be set aside and the order of the Collector appointing present appellant as Lambardar should be restored. ;