- (1.) THIS revision has been filed under sec. 187 of the Ajmer Tenancy and Land Records Act, 1950, and is directed against an order of the Collector, Ajmer dated 10.10.56 in a case relating to the appointment of two headmen in village Rampura.
(2.) WE have heard the learned counsel appearing for the parties and have also examined the record. The facts of the case lie within a short compass and may be briefly stated as follows:- Rampura village is situated in the former Istimrari estate of Pisangan in Tahsil and District Ajmer. Subsequent to the abolition of Intermediaries in the erstwhile State of Ajmer, the Collector of Ajmer decided that two Lamberdars should be appointed in that village and nominations were invited for the purpose. After following the usual procedure which obtains in such cases the Sub-Divisional Officer, Ajmer recommended the name of Sarv Shri Hazari and Misrilal for the two posts. He rejected the claim of the third candidate Shri Sheonath. After going through the matter and weighing the claims of the candidates the learned Collector came to the conclusion that the learned Sub-Divisional Officer had not dealt with the claims of Sarv Shri Hazari and Sheonath in a proper manner. He therefore remanded the case to him with the direction that he shall hold a further enquiry in the matter and submit a detailed report. Aggrieved by the decision of the learned Collector, Shri Sheonath has come in revision to the Board. It was contended on behalf of the applicant that the learned Collector had fallen into an error which was sufficient to vitiate his finding in so far as he did not comply with the mandatory provisions of the second proviso to rule 86 of the rules framed under the Ajmer Tenancy and Land Records Act, 1950 which runs as follows : - "Provided further that for every vacancy not less than two nominations shall be made." It was urged that the number of nominations in accordance with this proviso should have been at least four and the learned Collector should have gone through the procedure laid down in rule 90 if the number of nominations was less than four. The entire proceedings were vitiated by this illegality which had crept into the matter at an early stage. It was further contended that the learned Collector was not justified in dividing the village into Patties in an artificial manner and directing that so far as these two candidates were concerned the wishes of Bhuswamies and Kashtkars barring those who had been paying their land revenue through Shri Mishrilal be ascertained. As was clear from his earlier order creating these two posts of Lumberdars for the whole village the proper course which he should have followed was to direct the Sub-Divisional Officer to ascertain the wishes of all the Bhuswamies and Kashtkars residing in the village in respect of all the candidates. The learned counsel for the opposite party frankly conceded that failure on the part of the learned Collector to comply with the provisions of the proviso to rule 86 vitiated the entire proceedings. Taking this fact into consideration it is hardly necessary to go into the second contention raised on behalf of the applicant. The first contention goes to the very root of the matter and constitutes an illegality which would vitiate the entire proceedings. Rules 86 and 90 go together. Rule 90 provides that if the persons entitled to make a nomination under rule 86 do not make a nomination within the time specified or nominate persons who cannot be appointed as Lamberdar under these rules, the Sub-Divisional Officer may issue a second proclamation calling for fresh nominations. The Collector on the report of the sub-divisional officer, may appoint any suitable person as lamberdar after the expiry of ten days within which occupancy, ex-proprietary or hereditary tenants have the option to file nomination papers It is clear from the wording of Rule 90 that it gives another chance for inviting nominations on the failure of the persons entitled to make a nomination under Rule 86 to make a nomination within the time specified. The question which falls to be considered is whether the S.D.O. is bound to issue a second proclamation calling for fresh nominations because the words used in Rule 90 are that 'he may issue a second proclamation' calling for fresh nominations. On the contrary the words used in the proviso to Rule 86 are that for every vacancy not less than two nominations shall be made. If the number of nominations is less than two for every vacancy, the question arises whether the Collector can proceed with the appointments of any person as lamberdar. In the present case it is clear that the learned Collector did not apply his mind to the question whether sufficient nominations had been received in the manner laid down in Rule 86 ; nor did the learned S.D.O. do so. Even in the proclamation issued by the latter it was not specified that for every vacancy not less than two nominations shall be made. Whether there were other suitable candidates in the village who were anxious to be nominated for the vacancies was a matter which has not been gone into by the learned Collector. Considering these two Rules together the only inference which we can draw is that where the number of nominations is not in accordance with the second proviso to Rule 86, it cannot be said that there has been a fair contest in the matter of selecting candidates for appointment as Lamberdars. This failure on the part of the learned Collector would certainly constitute an illegality or a material irregularity. The word 'may' which occurs in Rule 90 has to be construed as 'must' if the provisions of the second proviso to Rule 36 are to be complied with. In the result we are clearly of opinion that the provisions as laid down under Rule 86 were not properly complied with by the learned S.D.O. or the learned Collector This omission on their part would constitute an illegality or a material irregularity which would be sufficient to vitiate the entire proceedings culminating in the order of the learned Collector which would also be affected by it. We, therefore allow the revision, set aside the order of the learned Collector and remand the ease to the learned S.D.O. with the direction that he shall proceed in the matter afresh after complying with the requirements of the rules.;