Mehinder Singh Sullar, J.
Tersenessly, the facts, culminating in the commencement, relevant for deciding the instant writ petition and emanating from the record, are that, in the wake of death of Surat Singh, the post of Lambardar of village Tharu, District Sonepat had fallen vacant. Ultimately, three candidates, namely, Anil Kumar son of Jai Narain (respondent No. 4), Satpal son of Chander Bhan (petitioner) and Rajbir son of Saurat Singh applied and lodged their respective claims for the indicated post of Lambardar within the prescribed period.
2. Having considered the respective merits and de-merits of the candidates and after following the due procedure, as contemplated under the provisions of The Punjab Land Revenue Act, 1887 and the Rules framed thereunder (hereinafter to be referred as "the Act and the relevant Rules"), the Collector, Sonepat appointed Anil Kumar (respondent No. 4) on the indicated post of Lambardar, by virtue of impugned order dated 31.10.2006 (Annexure P1).
3. Dissatisfied with the impugned order (Annexure P1), Satpal (petitioner) filed the appeal, which was accepted and he was ordered to be appointed as Lambardar by the Commissioner, Rohtak Division, by way of order dated 4.7.2008 (Annexure P2).
4. Aggrieved by the said order, Anil Kumar (respondent No. 4) filed the revision, which was accepted, the order (Annexure P2) of Commissioner was set aside and the order (Annexure P1) of Collector, appointing him (respondent No. 4) as Lambardar, was restored, by the Financial Commissioner (respondent No. 1), by means of impugned order dated 23.4.2009 (Annexure P3).
5. Petitioner Satpal did not feel satisfied with the impugned order (Annexure P3) and preferred the instant writ petition, invoking the provisions of Articles 226/227 of the Constitution of India. That is how I am seized of the matter.
6. At the very outset, exhibiting the doubts in regard to the utility of the post of Lambardar, a Coordinate Bench of this Court (Alok Singh, J.) directed the States of Punjab and Haryana to consider the desirability to abolish the post of Lambardar and to file the affidavits, inter-alia, to the effect that what are the duties/functions, which are being discharged by the Lambardars and as to whether those functions/duties cannot be delegated to the Panchayat, vide interim order dated 26.8.2011.
7. Sequelly, in pursuance thereof, the States of Punjab and Haryana have submitted their respective affidavits, enumerating the functions, duties and liabilities of the Lambardar. It was explained that the Lambardar functions independently without any political interference. Any person having any alliance with any political party is not eligible to be appointed as Lambardar. On the other hand, the members of panchayat generally relate to the political parties. If the functions/duties of the Lambardar are assigned to the panchayats, then the reports to be received by the Government in respect of various matters of happenings in the village may be biased and such functions cannot be assigned to the panchayats. In this manner, it was reiterated by the States that abolition of post of Lambardar would neither legally be feasible nor appropriate in the administration of justice and public interest.
8. Above-all, the learned counsel have contended with some amount of vehemence that neither any of the parties, have challenged the institution nor claimed abolition of the post of Lambardar, in any manner in the writ petition, nor there is any pleading, material or prayer of the concerned parties to abolish the post. The further argument is that, whether to retain or abolish the post of Lambardar, is within the competence of Legislature/Executive/Government and this Court did not have the power/jurisdiction to direct them to legislate/amend the Act and Rules in this relevant behalf.
9. Such thus being the position on record, now the first core question, though extremely important, that arises for determination in this regard is, as to whether this Court has the power/jurisdiction to direct the States of Punjab and Haryana to amend the Act and to delete the statutory rules dealing with the institution of Lambardar or not?
10. Having regard to the rival contentions of learned counsel for the parties, to my mind, the answer must obviously be in the negative.
11. What cannot possibly be disputed here is that the Constitution of India has categorically defined the function of the legislature, the executive and the judiciary. There is a broad separation of power under the Constitution between the three organs of the democracy. Their respective jurisdictions are entirely distinct, having different spheres of operation and well defined. As per the Constitutional Scheme, the legislature, the executive and the judiciary are not required to encroach into each others domains and no organ can usurp the function assigned to another. This matter is no more res integra and is well settled.
12. An identical question came to be decided by the Hon'ble Supreme Court in case Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr., 2008(1) S.C.T. 279 : 2008(1) Recent Apex Judgments (R.A.J.) 116 : (2008)1 S.C.C. 683. Having considered the respective jurisdictions of three organs of the democracy i.e. the legislature, the executive and the judiciary and the law laid down in cases Indian Drugs and Pharmaceuticals Ltd. v. The Workman of Indian Drugs and Pharmaceuticals Ltd. 2007(1) S.C.T. 214 : (2007) 1 SCC 408, S.C. Chandra and Ors. v. State of Jharkhand and Ors. 2007(4) SCT 76, Tata Cellular v. Union of India, AIR 1996 SC 11, Ram Jawaya v. State of Punjab, AIR 1955 SC 549 and Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899 and line of other judgments mentioned therein, inter alia, ruled as under :-
(i) Each organ of the State the legislature, the executive and the judiciary - must have respect for the others and must not encroach into each others domains.
(ii) Adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges' preferences.
(iii) The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not.
(iv) If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it.
(v) Judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches.
(vi) Restraint stabilizes the judiciary so that it may better function in a system of inter-branch equality.
(vii) Judicial restraint tends to protect the independence of the judiciary.
(viii) The constitutional trade-off for independence is that judges must restrain themselves from the areas reserved to the other separate branches.
(ix) Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers.
(x) The touchstone of an independent judiciary has been its removal from the political or administrative process.
(xi) When courts encroach into the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored.
(xii) If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators.
13. Keeping the law laid down by Hon'ble Apex Court into focus, to me, it is within the domain of legislature, executive/government to retain or otherwise and this Court did not have the power/jurisdiction to direct the State Government to amend the Act/relevant Rules to abolish the age-old very important institution of the Lambardar and to further amend the other relevant Acts to assign the duties to the Panchayati Raj Act/Institutions in this relevant connection.
14. There is another very significant aspect of the matter, which can be viewed from an entirely different angle. The Erstwhile Punjab (including Haryana) is essentially an agricultural State, one and half of which is tilled by peasant/landowners. There are very few big land-owners, having much properties in the whole province. The bulk of the population of Punjab consists of landowners and their dependents. The Act was enacted to amend and declare the law in force in the State of Punjab with respect to making and maintenance of records-of-rights of land holdings, the assessment and collection of land revenue, other matters relating to land and the liabilities incident thereto and to provide a procedure for preparation of record-of- rights of different types of land held by the owners or tenure holders and collection of land revenue, other cess and taxes etc.
15. It is not a matter of dispute that the entire land administration is regulated by the strong body of Government servants and Collector has been designated as the Controller of the District. The Government functionaries constitute a powerful piece of administrative machinery. Keeping in view the peasantry in Punjab, the Government machinery has been supplemented by the representatives of the landowners/inhabitants of the locality in the shape of village headman (Lambardar). It is always obviously convenient for the State functionaries to deal with the village communities through Lambardar, who status-wise is village-officer, as envisaged under section 3(11) of the Act. They exercise the collective pool of wisdom for the growth of peasantry based rural society.
16. Similarly, section 3 of the Act defines `estate' to mean any area, for which a separate record-of-rights has been made, or which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed and `holding' means a share or portion of an estate held by one land-owner or jointly by two or more land-owners. `Land revenue' includes assigned land-revenue and any sum payable in respect of land, by way of quit rent or of commutation for service, to the Government or to a person, to whom the Government has assigned the right to receive the payment. The Lambardar acts as a very important link between the Collector, representative of the State and village community to recover the land revenue, cess or taxes of any kind and other related functions in order to achieve the aims and objects of the Act.
17. Not only that, in exercise of the rule making powers, the Government has framed the statutory rules. Rule 14 of the relevant Rules deals with the number of vacancies of Headmen/Lambardars to be appointed to every estate. Rule 15 is in regard to the matters to be considered for the appointment of Lambardar. Rule 19 envisages the appointment of revenue farmers and mortgagees as headmen, whereas Rule 19-B deals with the appointment of Harijan/Christian Lambardars for the welfare of the entire community.
18. Likewise, Rule 20 postulates that in addition to the duties imposed upon headman by law for any purpose, a headman shall -
(i) collect by due date all land-revenue and all sums, recoverable as landrevenue from the estate, or sub-division of an estate in which he holds office, and pay the same personally or by revenue money order or by remittance of currency notes through the post [or at places where treasury business is conducted by the (State Bank of India or any Scheduled Bank as notified by the State Government from time to time), by cheque on a local Bank], at the place and time appointed in that behalf to the Revenue-Officer or assignee empowered by Government to receive it;
(ii) collect the rents and other income of the common land, and account for them to the persons entitled thereto;
(iii) acknowledge every payment received by him in the books of the landowners and tenants;
(iv) defray joint expenses of the estate and render accounts thereof as may be duly required of him;
(v) report to the tehsildar the death of any assignee of land- revenue or Government pensioner residing in the estate, or the marriage or remarriage of a female drawing a family pension and residing in the estate; or the absence of any such person for more than a year;
(vi) report to the tehsildar and Collector all encroachments on and injury to the roads public streets and Government Nazul and panchayat land.
(vii) report any injury to Government buildings made over to his charge;
(viii) carry out, to the best of his ability, any orders that he may receive from the Collector requiring him to furnish information or to assist in providing on payment supplies or means of transport for troops or for officers of Government on duty;
(ix) assist in such manner as the Collector may from time to time direct at all crop inspections, recording of mutations, surveys, preparation of records of right, or other revenue business carried on within the limits of the estate;
(x) attend the summons of all authorities having jurisdiction in the estate, assist all officers of the Government in the execution of their public duties, supply, to the best of his ability any local information which those officers may require, and generally act for the landowners, tenants and residents of the estate or sub-division of the estate in which he holds office in their relations with Government;
(xi) report to the patwari any outbreak of disease among animals [or human beings];
(xii) report to the patwari the deaths of any right-holders in their estates. (xiii) report any breach or cut in a Government Irrigation canal or channel to the nearest canal officer, or canal patwari.
(xiv) under the general or special directions of the Collector, assist by the use of his personal influence and otherwise all officers of Government and other persons, duly authorised by the Collector, in the collection and enrolment of recruits for military services whether combatant or non-combatant.
(xv) render all possible assistance to the village postman, while passing the night in the village, in safeguarding the cash and other valuables that he carries.
19. In the same context, Rules 52 to 70 escalate the collection of land revenue, other cesses and recovery of arrears, to which, the age-old institution of the Lambardar is an integral part of the entire scheme emitting from the Act and Rules.
20. Moreover, the affidavit submitted on behalf of the State of Haryana further indicates the following other important functions, which are still carried out by the Lambardar :-
a) Under Rule 50 of The Haryana Canal and Drainage Rules, 1976, water rate i.e. abiana (where there is a canal) is collected by him.
b) The persons of older generation who do not have birth certificates, their verifications are made through him.
c) Old age pensions, handicapped pensions, social security and different Government schemes are implemented with his assistance.
d) Amount of crops damages is verified with the help of the Lambardar where compensation is required to be paid.
e) Entry in Patwar Roznamcha has his verification.
f) The post of Lambardar is lifetime post or unless disqualified, hence he is in a better position to assist in the above mentioned duties and functions than elected Sarpanch who is for fixed terms.
21. Sequelly, Para 307 of the Punjab Land Administration Manual (for brevity "the Manual") provides that the village communities/landowners/tenants and other residents, function and deal with the State functionaries through Lambardar in every walks of life. The Lambardars are bound to attend the meeting when summoned by officers of Government and aid them in the execution of their public duties. Their important functions, to help the Government machinery as regards the prevention and detection of crime are very significant. Besides the other indicated duties, the Lambardars are also required to collect and pay into the treasury the land revenue, to report to the Tehsildar, to aid in carrying out harvest inspections, surveys etc., to render all possible assistance to the village postman, while passing the night in the village, in safeguarding the cash and other valuables that he carries and to assist the authorities during the course of consolidation proceedings.
22. This is not the end of the matter. Admittedly, the panchayats are elected bodies comprising of elected representatives for a fixed period of five years, on the basis of politically motivated elections. The petty village politics between the rival groups of members panchayat, is already hampering the development of the village, whereas any person having any alliance to any political party, is not eligible to be appointed as Lambardar. He once appointed holds an office for life, unless the Deputy Commissioner dismisses him on account of his misconduct or accepts his resignation.
23. Moreover, the area of working of Lambardar under the Act/relevant Rules is entirely different than the sphere of other office bearers under the provisions of The Panchayati Raj/other Acts. The balance between the different categories of such functionaries, is not only essential, but necessary as well, to maintain the intensity of the institutions. Therefore, it would not otherwise be appropriate to assign the functions/duties of Lambardar to the Panchayat. It will inculcate and perpetuate injustice and have a negative impact on the peasantry in this relevant connection.
24. Thus seen from any angle, if the important functions/duties attached to the post of Lambardar in different spheres under the different Acts and totality of other relatable facts and circumstances, as depicted hereinabove, are put together, then, to me, the conclusion is inescapable and irresistible that the age-old institution of Lambardar is an integral and significant part of the revenue system and cannot possibly be severed from the scheme, as contemplated under the Act and relevant Rules. The mere enactment of the Haryana Panchayati Raj Act, 1994, The Punjab Village Common Lands (Regulation) Act, 1961, Registration of Births and Deaths Act, 1969 and the fact that some of the Lambardars are involved in criminal cases, ipso facto, are not the cogent grounds to abolish the significant integral and ancient institution of Lambardars. Similarly, their indicated multifarious functions and duties cannot be assigned to any other institutions, without amending the relevant Act/Rules, which are not legally permissible in this regard.
25. Keeping the constitutional restriction of this Court to direct the State Government to re-legislate the Act or to amend the Rules to abolish the post of Lambardar or other related Acts, functions, duties and the importance of ancient institution of Lambardar, into focus, as discussed hereinbefore, to my mind, it cannot possibly be severed from the significant scheme of the Act/relevant Rules, it would not be otherwise appropriate and no such direction can legally be issued to the States of Punjab and Haryana to abolish the age-old institution of the Lambardar, under the present set of circumstances in this relevant direction.
26. Now adverting to the merits of the main case, the celebrated argument of learned counsel for the petitioner that the Collector and Financial Commissioner committed a legal mistake in appointing Anil Kumar (respondent No. 4) as Lambardar, is not only devoid of merit but misplaced as well.
27. As is evident from the record that, the name of Anil Kumar (respondent No. 4) was recommended by the field officers i.e. the Tehsildar and Sub Divisional Officer (C). Anil Kumar is 10th class passed and is a permanent resident of the village. Again, the mere fact that petitioner Satpal is owner of 4 kanals 6 marlas of land and was subsequently elected as Sarpanch, is not a good ground to appoint him as Lambardar of the village, particularly when it is not a matter of dispute that a criminal case was registered against him for committing a culpable homicide, causing murder of Dharambir and causing injury to Krishan Kumar by stabbing with knife. After completion of the trial, the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period ten years and to pay a fine of Rs. 1000/- for the commission of offence punishable under section 304 Part 1, IPC by the trial Court, by virtue of judgment of conviction dated 2.3.1989. He filed criminal appeal bearing No. 123-SB of 1989 and his conviction was maintained, by means of judgment dated 19.9.1990 by this Court.
28. Similarly, Rule 15(d) of the relevant Rules posits that "personal influence, character, ability and freedom from indebtedness, inter-alia, are the factors/ matters to be considered in the first appointment of Lambardar." That means, the quality/character and conviction of an individual are thus a relevant consideration. As the petitioner was convicted in a heinous offence of murder, therefore, surely, the people will not have much confidence and would not believe such a convicted person. A Division Bench of this Court in case Jog Dhian v. Financial Commissioner, Haryana and others, 2005(1) R.C.R.(Civil) 658 : 2005(2) P.L.R. 306 has observed that once a person has been tried for a murder case, though acquitted, he is not a fit person to be appointed as Lamabrdar. As indicated earlier, in the instant case, even the conviction of petitioner Satpal was upheld by this Court. Therefore, it would not be appropriate to appoint him as Lambardar of the village in this context.
29. Above-all, having completed all the codal formalities and considering the respective pros and cons of the candidates, the Collector, Sonepat rightly appointed Anil Kumar (respondent No. 4) as Lambardar of village Tharu, by way of impugned order dated 31.10.2006 (Annexure P1), which, in substance, is as under :-
"After hearing the arguments of all the three candidates and after perusal of record came on the file it was found that a criminal case was registered against the candidate Satpal and in that case he was convicted. No importance is to be given to the person with a criminal mindset for appointment for the post of Nambardar. Better candidate is to be appointed on the post of Nambardar. The resolution of the Gram Panchayat is of no importance. More persons have deposited (Sic. deposed) in favour of Anil before the Circle Revenue Officer. Anil has given more support in the social work. No evidence has been produced by the candidate Satpal and Rajbir on the basis of which it can be proved that candidate Anil is residing outside the village. Naib Tehsildar, Tehsildar and Sub Divisional Officer (C) Sonepat have recommended the name of Anil. On the basis of these facts, Anil is found better candidate than the other two for appointment on the post of Nambardar.
Therefore, Anil Kumar s/o Jai Narian village Tharu is appointed as Nambardar in place of the deceased Nambardar Surat Singh village Tharu. This order be recorded in the record of the concerned department. After compliance the case be filed in the record room."
30. On the contrary, the Commissioner has slipped into a deep legal error and arbitrarily set aside the well reasoned order/choice of the Collector, without assigning any cogent reasons against the well established legal provisions, vide order (Annexure P2). Admittedly, the Collector is the appointing authority of the Lambardar. The appointment of Lambardar is administrative function and is prerogative of the District Collector, being In-charge of the Administration. It is the duty of the Collector to appoint such persons in the office of Lambardar, who are eligible and competent to carry out the duties efficiently. He is in an advantageous position to examine the merits and demerits of the candidates. The choice of the Collector in the matter of appointment of village Lambardar should not normally be interfered with, unless the Collector has taken a perverse view and has not exercised his choice judiciously. However, in the instant case, the patent illegality committed by the Commissioner was duly rectified by the Financial Commissioner, through the medium of impugned order (Annexure P3) and restored the order/choice of Collector appointing respondent No. 4 as Lambardar on the indicated post.
31. The learned counsel for the petitioner did not point out any legal violation and material, much less cogent, to contend as to how and in what manner, the impugned orders of the Collector (Annexure P1) and Financial Commissioner (Annexure P3) are illegal and would invite any interference in this relevant behalf.
32. No other meaningful argument has been raised by the learned counsel for the petitioner to assail the impugned orders. All other celebrated arguments, now sought to be urged on his behalf in this relevant direction, have already been duly considered and dealt with by the Collector and Financial Commissioner.
33. Meaning thereby, the Collector and Financial Commissioner have recorded the cogent grounds in this relevant connection. Such orders, containing valid reasons, cannot possibly be interfered with by this Court, while exercising the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India, unless and until, the same are illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned orders (Annexures P1 and P3) deserve to be and are hereby maintained, in the obtaining circumstances of the case.
34. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
35. In the light of aforementioned reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such.
Petition dismissed.