Chattisgarh High Court
Prahlad Yadav vs State Of Chhattisgarh on 8 November, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1/6
2024:CGHC:43479
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 6586 of 2024
1 - Prahlad Yadav S/o Shri Shivprasad Yadav Aged About 36 Years R/o Village-
Ratanmahka, Tahsil- Kharsia, Police Station- Kharsia, District Raigarh,
Chhattisgarh.
... Petitioner
versus
1 - State Of Chhattisgarh Through Secretary, Department Of Revenue, Mahanadi
Bhawan, Mantralaya, Atal Nagar, Nava Raipur, District Raipur, Chhattisgarh.
2 - Chhattisgarh Board Of Revenue Through Secretary, Mungeli Road, Bilaspur,
Chhattisgarh.
3 - Collector District Raigarh, Chhattisgarh.
4 - Sub Division Officer (Revenue) Kharsia, District Raigarh, Chhattisgarh.
5 - Tahsildar, Tahsil Kharsia District Raigarh, Chhattisgarh.
6 - Somendra (Sumendra) Sidar S/o Late Shri Shrawan Sidar Aged About 22 Years
R/o Village- Ratanmahka, Tahsil- Kharsia, District Raigarh, Chhattisgarh.
7 - Ramesh Rathore S/o Late Shri Shiv Prasad Rathore R/o Village- Ratanmahka,
Tahsil- Kharsia, District Raigarh, Chhattisgarh.
8 - Amarnath S/o Shri Jethuram R/o Village- Ratanmahka, Tahsil- Kharsia, District
Raigarh, Chhattisgarh.
... Respondents
(cause title is taken from Case Information System) For Petitioner : Mr. Abhishek Singh, Advocate For State : Mr. Sabyasachi Choubey, Panel Lawyer.
For Respondent No. 6 : Mr. Nasimuddin Ansari, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 08/11/2024
1. Challenge in this writ petition is to the order dated 20.03.2024 whereby Board of Revenue has dismissed the revision preferred by petitioner under Section 50 of the Chhattisgarh Land Revenue Code, 1959 2/6 (hereinafter referred as "the Code, 1959") and further issued direction to respondent No. 5 to initiate fresh proceedings for appointment of permanent Kotwar in exercise of powers under Section 230 of the Code, 1959.
2. Learned counsel for petitioner submits that after death of earlier Kotwar on 13.08.2021, proceedings has been initiated for appointment of temporary Kotwar by Village Panchayat. In the said proceedings, petitioner along with other three persons including respondents No. 6, 7 & 8 have submitted application. Village Panchayat found respondent No. 6 have not completed minimum age prescribed for appointment and has recommended name of petitioner for appointment as temporary Kotwar. Appointment of petitioner was put to challenge by respondent No. 6 before Sub-Divisional Officer which was dismissed vide order dated 27.09.2022 on the ground of maintainability. Order of Sub-Divisional Officer passed under Section 44 (1) of the Code, 1959 was put to challenge in second appeal before the Commissioner which was allowed vide order dated 18.08.2023. Against the order passed by Commissioner dated 18.08.2023, petitioner has preferred revision before Board of Revenue. Board of Revenue set-aside all the orders and directed Tahsildar to initiate fresh proceedings for appointment of permanent Kotwar after hearing applicants vide impugned order dated 20.03.2024. He contended that Board of Revenue though has taken into consideration that respondent No. 6 did not fulfill minimum age criteria as prescribed under the Rules, has set aside well reasoned order of appointment of petitioner as temporary Kotwar. He fulfills eligibility criteria as prescribed under Section 230 and Rules framed 3/6 under the Code, 1959. He next contended that even if the direction could have been issued for appointment of permanent Kotwar, then Board of Revenue ought to have directed to consider name of applicants who have submitted applications for appointment as temporary Kotwar and therefore, order is bad in law.
3. Learned State counsel opposes the submission made by learned counsel for petitioner and would submit that initially proceedings for appointment of temporary Kotwar was initiated immediately after post of Kotwar of Village Panchayat Ratanmahka, Tahsil- Kharsia, District Raigarh,became vacant. He contended that appointment of temporary Kotwar is to meet out emergent situation and even after completion of proceedings of appointment of temporary Kotwar, appointing authority has to initiate fresh proceedings for appointment of permanent Kotwar by following due procedure of law as provided under Section 230 and Rules framed thereunder . There is no error in the order impugned, hence, it does not call for any interference.
4. Learned counsel for respondent No. 6 also opposes submission made by learned counsel for petitioner and supports impugned order.
5. I have heard learned counsel for the respective parties and also perused the documents available on record.
6. Perusal of order Annexure-P/2 would show that after death of earlier Kotwar on 13.06.2021, appointing authority i.e. Tahsildar has initiated proceedings for appointment of temporary Kotwar and vide order dated 11.04.2022, petitioner was appointed as temporary Kotwar.
7. Appointment of petitioner as temporary Kotwar was put to challenge in an appeal before Sub-Divisional Officer, who dismissed the appeal on 4/6 the ground of maintainability as the appellant therein was below 21 years of age. The order of Sub-Divisional Officer, allowing objection, that appeal is not maintainable only on the ground that appellant therein, on the date of application, has not completed 21 years of age is not correct. Against the order of appointment of temporary Kotwar by Tahsildar, according to the provision under Section 44 of the Code of 1959, only remedy to challenge the order is by way of appeal. When once appeal is submitted as provided under the provisions of the Code of 1959 by aggrieved person, the appeal is to be heard on merits and therefore, the order of Sub-Divisional Officer was erroneous to that extent.
8. The order of Sub-Divisional Officer was put to challenge in second appeal under Section 44 (2) of the Code of 1959. The Second Appellate Authority, instead of considering the ground on which name of respondent No. 6 was not considered for appointment, was though considered, however, the Second Appellate Authority has allowed the appeal considering the provision under Rule 4 (2) of the Rules regarding Appointment, Punishment and Removal of Kotwars and Their Duties, framed under Section 230 of the Code of 1959 which was not consideration of appointing authority while not considering the name of respondent No. 6 for his appointment as temporary Kotwar and appointing the petitioner. The said order of Second Appellate Authority was, also in the facts of the case, was erroneous.
9. Petitioner thereafter filed revision before the Board of Revenue under Section 50 of the Code of 1959. The Board of revenue, even after recording a finding that respondent No. 6, son of earlier Kotwar, has 5/6 not completed 21 years of age, and non-applicability of Rules 4 (2), on the said date, set aside the order of Tahsildar dated 27.09.2022 which, in the opinion of this Court, the order impugned passed by Board of Revenue to that extent is erroneous. However, in the same order, there is a direction to initiate proceedings of permanent Kotwar within a period of six months after hearing applicants. When Board of Revenue issued direction for appointment of permanent Kotwar, then, procedure as prescribed under the Rules framed under Section 230 of the Code of 1959 are to be followed and in that process, hearing of applicants in the proceedings of appointment of permanent Kotwar, is not warranted, because proceedings of appointment of permanent Kotwar would be fresh proceeding following due process of law.
10. Rule 4 of Rules framed under Section 230 of the Code of 1959 for appointment of Kotwar envisages the procedure upon occurrence of vacancy in the post of Kotwar. Under Proviso 2 Rule 4 [1], it is specifically mentioned that immediately on occurrence of vacancy, the appointing authority may temporarily appoint a suitable person to perform duties of office of Kotwar till regular appointment under Sub- Rule (1) is made.
11. Undisputedly, after occurrence of vacancy, appointing authority has initiated proceedings for appointment of temporary Kotwar and therefore, appointment of temporary Kotwar would be only till regular appointment under Sub-Rule 1 is made.
12. From perusal of the Rules of appointment, in particular, Rule 4 for appointment of permanent Kotwar, fresh process of issuing advertisement, calling applications, passing of resolution by Village 6/6 Panchayat recommending names of a person to be appointed as Kotwar, to be forwarded to the appointing authority is mandated.
13. In the case at hand, the Board of Revenue though directed for initiating proceedings for appointment of permanent Kotwar, however, direction that appointment of permanent Kotwar be made after hearing applicants, is not the intent of Rule 4 and therefore, impugned order, to that extent is not sustainable and it is hereby set aside. However, direction for initiating proceedings for appointment of permanent Kotwar shall remain intact.
14. Petitioner has placed on record Annexure-P/7 i.e. advertisement for appointment of permanent Kotwar, however, it is directed that proceedings for appointment of permanent Kotwar shall be strictly in accordance with the Rules 4 of Rules regarding Appointment, Punishment and Removal of Kotwars and Their Duties, framed under Section 230 of the Code of 1959, wherein, it does not provide for giving any opportunity of hearing to applicants.
15. If the proceedings of appointment, pursuant to advertisement is not completed, it be concluded at the earliest within further period of three months.
16. For the foregoing discussions, writ petition stands disposed of.
Sd/-
(Parth Prateem Sahu)
Shayna Judge