IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
WP No. 4285 of 2004
1 Padum Das
...Petitioner
VERSUS
1 Board of Revenue Chhattisgarh
2 Additional Collector
3 Sub-Divisional Officer
4 Tahsildar Bilha District
5 Santan Das
...Respondents
! Mr I.S. Sahu counsel for the petitioner
^ Mr Satish Gupta, Dy. Govt. Advocate for the respondents No. 2, 3 and 4
Mr Goutam Khetrapal, counsel for the respondent No 5
Hon'ble Justice Shri Satish K. Agnihotri
Dated: 23/04/2007
: Order
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION
OF INDIA
O R D E R
(Passed on this 23rd day of April, 2007)
1. The petitioner was appointed as Temporary Kotwar of
village-Murkuta vide order dated 8.3.2002. During
the appointment of the petitioner as temporary
Kotwar, the Gram Sabha passed the resolution to
appoint the respondent No. 5 as permanent Kotwar of
village-Murkuta. Section 230 of the M.P. Land
Revenue Code, 1959 (hereinafter referred to as “the
Code, 1959”) provides for appointment of kotwars and
their duties. Rule 4 (1) of the Rules regarding
appointment, punishment and removal of Kotwars and
their duties (hereinafter referred to as “the
Rules”) provides that the Revenue Officer is
competent to appoint Kotwar after receiving a
resolution duly passed by the Gram Panchayat in
whose area the post of Kotwar is vacant. In the
present case, the appointment of the respondent No.
5 was admittedly made, not on the basis of the
resolution, duly passed by the Gram Panchayat, but
on the basis of the resolution passed by the Gram
Sabha, which is contrary to the provision of the
Rules.
2. Learned counsel appearing for the petitioner submits
that the petitioner has filed an appeal, being Case
No. 19-A-56-2001-02, before the Sub-Divisional
Officer, Bilaspur against the order dated 30.5.2002,
passed by the Tahsildar, Bilha, District Bilaspur.
The Sub-Divisional Officer vide his order dated
30.11.2002 (Annexure P/3) remanded back the matter
on the ground that the authority below has not
considered all the aspects before appointing the
respondent No. 5 as permanent Kotwar. However, the
Sub-Divisional Officer, Bilaspur/respondent No. 3
held that the resolution passed by the Gram Sabha is
proper.
3. Against the order dated 30.11.2002, passed by the
Sub-Divisional Officer, Bilaspur, the respondent No.
5 filed a revision, being Revision Case No. 11/A-
56/02-03, before the Additional Collector,
Bilaspur/respondent No. 2, wherein the Additional
Collector vide order dated 29.9.2003 (Annexure P/4)
allowed the revision on other points, but confirmed
the finding of the Sub-Divisional Officer with
regard to appointment based on the resolution passed
by the Gram Sabha.
4. Against the order dated 29.9.2003, passed by the
Additional Collector, Bilaspur, the petitioner filed
an appeal, being Revenue Appeal Case No. 22/A-
56/2003-04, before the Board of Revenue, Bilaspur,
wherein the Board of Revenue vide order dated
13.10.2004 (Annexure P/6), maintained the finding of
the Additional Collector to the effect that the
resolution passed by the Gram Sabha was correct and
dismissed the appeal.
5. Being aggrieved and dissatisfied with the orders,
passed by the authorities below, the petitioner has
filed this petition.
6. I have heard learned counsel appearing for the
parties and gone through the pleadings and documents
appended thereto. The authorities below have
committed serious infirmity in arriving to the
conclusion that the resolution duly passed by the
Gram Sabha for appointing the respondent No. 5 as
Kotwar was just and proper and appointment made on
the basis of the said resolution was legal and
valid.
7. It is beneficial to quote Rule 4 of the Rules, which
reads as under:-
“4. 1[(1) On the occurrence of a vacancy in the
post of a Kotwar, the Revenue Officer, who is
empowered to make appointment, after receiving
a resolution duly passed by the Gram Panchayat
in whose area the post of Kotwar is vacant,
shall appoint an eligible person on the post of
Kotwar, if the person proposed in the
resolution does not fulfill the qualification
prescribed in rule 2, the authorised Revenue
Officer shall reject the resolution after
recording the reasons in writing and intimate
the Gram Sabha and call for a fresh proposal:
Provided that immediately on occurrence of
a vacancy, the appointing authority may
temporarily appoint a suitable person to
perform the duties of the office of Kotwar till
the regular appointment under sub-rule (1) is
made.]
xx xxx xxx xx ”
8. The State of Madhya Pradesh by notification dated
20.11.2001 substituted the word “Gram Panchayat” by
the “Gram Sabha”, but the
same is not applicable in case of the State of
Chhattisgarh, as the State of Chhattisgarh came into
existence w.e.f. 1.11.2000 and all the rules made
under the M.P. Land Revenue Code, 1959 prior to
1.11.2000 were adapted as it is, but the subsequent
amendment made in Rule 4 by the Sate of Madhya
Pradesh is not admittedly applicable to the State of
Chhattisgarh. So far as the State of Chhattisgarh is
concerned, the old Rule 4, as stated above, is
applicable.
9. The provision of Rule 4 of the Rules is so clear as
it does not admit of any ambiguity or confusion. The
appointment on the post of Kotwar has to be made by
the Revenue Officer after receiving a resolution
duly passed by the Gram Panchayat, but in the
present case, admittedly, the resolution was passed
by the Gram Sabha, village-Murkuta.
10. Thus, this petition is allowed and the order dated
30.5.2002 (Annexure P/2), passed by the Tahsildar,
Bilha is held as void abinitio and subsequently,
confirmed by the authorities below are also vitiated
and are accordingly quashed. The Gram Panchayat,
Village-Murkuta is at liberty to take steps for
appointment a permanent Kotwar, as early as
possible, in accordance with law.
11. In the facts and circumstances of the case, there
shall be no order as to costs.
Judge