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PETITIONER: KHAZAN SINGH

       Vs.

RESPONDENT: SHAMSHER SINGH & ORS.

DATE OF JUDGMENT:       07/04/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                 THE 7TH DAY OF AUGUST, 1998 Present              Hon’ble Mr. Justice G.T. Nanavati              Hon’ble Mr. Justice S.P. Kurdukar S.N. Mehta, Adv. for the appellant Pallav Sisodia,  Altaf Hussain,  Dr. K.P.S.  Dalal,  Dr.K.S. Chauhan, Advs. for the Respondents                       J U D G M E N T      The following Judgment of the Court was delivered: Nanavati, J.      Leave granted.      Heard learned counsel for the parties.      The  appellant  -  Khazan  Singh  was  appointed  as  a Lambardar by  the Collector  of  Jind  by  his  order  dated 17.12.90. That  order was challenged by one Tek Chand before the Commissioner,  Hissar Division. the Commissioner without setting aside the order of the Collector remanded the matter to him  for fresh  consideration of  merits and  demerits of Khazan Singh  and  Tek  Chand.  This  order  of  remand  was challenged by  Khazan Singh  by filing  an appeal before the Financial Commissioner,  Haryana. He  disposed of the appeal by declaring  that the  order passed  by the  Collector  has become final  and by  observing that  the  proceedings  have become infructuous as a result of death of Tek Chand.      Aggrieved by  that order,  Shamsher Singh,  son of  Tek Chand filed  a Writ Petition in the High Court of Punjab and Haryana. It  disposed of  the petition by remanding the case to the  Collector and  directing  the  Collector  to  permit Khazan Singh  to continue as Lambardar till a fresh decision is taken  by him  as to  who  should  be  appointed  as  the Lambardar. The  High Court  also directed  the Collector  to invite fresh  applications  from  other  interested  persons before deciding who should be appointed as the Lambardar.      Aggrieved by the order passed by the High Court, Khazan Singh has filed this appeal. It was submitted by the learned counsel  for   the  appellant  that  the  Collector’s  order appointing the  appellant having  become final as it was not set aside  by any of the appellate authorities, no direction could have  been given  to the  Collector  to  invite  fresh applications and  decide who  should  be  appointed  as  the

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lambardar. In  our opinion,  this contention  deserves to be accepted.  Even  the  learned  counsel  for  the  respondent conceded that  so long as the appointment of Khazan Singh as Lambardar is  not cancelled, it is not permissible to invite fresh applications. As the order passed by the High Court is not sustainable,  it has  to be  set aside.  We,  therefore, allow this  appeal, set  aside the  order passed by the High Court and  remit the  matter to  the Financial Commissioner, Haryana, to decide the appeal afresh as the question whether the cause  of action  survived or  not was  required  to  be decided before  closing the  proceedings. It will be open to Shamsher Singh  to apply  to the  Commissioner to  join as a respondent in the said appeal and contend that it is open to him  to   challenge  the  appointment  of  Khazan  Singh  as Lambardar. It  will be open to Khazan Singh to raise all the contentions which are permissible in law.      This appeal is allowed accordingly.      No order as to costs.