Chattisgarh High Court
Ghenu Ram vs Duryodhan on 8 April, 2024
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Neutral Citation
2024:CGHC:12456
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 15-01-2024
Pronounced on 08-04-2024
WP227 No. 772 of 2017
Ghenu Ram S/o Bilwa Ganda, Aged About 47 Years
R/o Village Madagmuda, Tahsil Mainpur, District Gariyaband, Chhattisgarh.,
District : Gariyabandh, Chhattisgarh
---- Petitioner
Versus
1. Duryodhan S/o Sukhi Ram Ganda R/o Village Madagmuda, Tahsil Mainpur,
District Gariyaband, Chhattisgarh., District : Gariyabandh, Chhattisgarh
2. State of Chhattisgarh Through The Secretary, Revenue And Disaster
Management Department, Mahanadi Bhawan, Atal Nagar, Nawa Raipur,
District : Raipur (Chhattisgarh)
3. Board of Revenue Chhattisgarh Bilaspur, District : Bilaspur (Chhattisgarh)
4. Additional Commissioner Raipur, District : Raipur (Chhattisgarh)
5. Sub Divisional Officer Gariyaband, District : Gariyaband (Chhattisgarh)
6. Tahsildar Mainpur, District : Gariyaband (Chhattisgarh)
---- Respondents
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For petitioner : Mr. Govind Ram Miri, Sr. Advocate with Mr. Basant Kaiwartya, Advocate.
For respondent No.1. : Mr. Vineet Kumar Pandey, Advocate.
For Respondent/State : Mr. Chitendra Singh, PL.
Hon'ble Shri Justice Narendra Kumar Vyas.
CAV ORDER
1. The petitioner has filed this writ petition under Article 227 of the Constitution of India with a prayer to set aside the order dated 23-6- 2017 (Annexure P/1) passed by the learned Board of Revenue, Bilaspur (C.G.) in RN/14/R/A/56/36/2014 in case of Ghenu Ram vs. Duryodhan by which learned Board of Revenue has affirmed the order Neutral Citation 2024:CGHC:12456 2 dated 19-10-2011 passed by the Additional Commissioner, Raipur in Appeal Case No. 12/A-56/2011-12, the order dated 21-3-2017 passed by the Naib Tahsildar in Case No 6/A-56/2006-07 and quashed the order dated 30-10-2007 passed by the Sub Divisional Officer, in case No. 4-A/56/2007-2008.
2. This court while hearing the petition has called upon the record of the Sub Divisional Officer, Gariyaband as well as record of the proceeding regarding appointment of Kotwar conducted by the Tahsildar, Mainpur, record of Revenue Board for perusal of this court and following facts are emerged from the records.
3. Tahsildar, Mainpur, District Gariyaband has initiated proceeding for appointment of Kotwar for village Madagmuda, Patwari Halka No 42, RN Mainpur, Tahsil Gariyaband, District Raipur as working Kotwar Sugba retired from services. Thereafter the proceedings for appointment of Kotwar was initiated by proclamation in the village and report was obtained. In pursuance of the proclamation only one application of Duryodhan/respondent No.1 was received by the Tahsildar. Thereafter, opinion from the Gram Panchayat was obtained and to verify the Caste Certificate was called, the statement of Sarpanch Madanguda and statement of respondent No.1/Duryodhan was recorded. The procedures were followed as per rules made by the State in exercise of power conferred under Section 230 of the Chhattisgarh Land Revenue Code. The Gram Panchayat has given opinion to give priority to the son of Ex-Kotwar for appointment and the character certificate was also obtained. Thereafter, the Naib Tehsildar has recorded its recommendation to appoint the respondent No.1 on the post of Kotwar. Accordingly, the matter was referred to the Tahsildar, who vide order dated 21-3-2007 has appointed the respondent No.1 on the post of Kotwar.
4. Being aggrieved with the appointment of Kotwar, the petitioner has preferred an appeal before the Sub Divisional Officer, Gariyaband under Section 44 of the CG Land Revenue Code mainly contending Neutral Citation 2024:CGHC:12456 3 that without following due process of proclamation the Naib Tahsildar with collusion of Sarpanch and Up-Sarpanch has fraudulently got their signatures and in fact no proclamation was made in the village regarding appointment of Kotwar, as such the aforesaid appointment is illegal. It has also been contended that respondent No.1/Duryodhan has taken bribe of Rs.1,000/- from the Beedi Leaf Merchants and this fact was also brought to the notice of the Sub-Divisional Officer, Gariyaband, therefore, prayed for setting aside illegal appointment of respondent No. 1.
5. The said appeal was admitted by the Sub Divisional Officer on 30-10- 2007 and the record was called upon and thereafter arguments were heard and the order was passed on 30-10-2007 by which learned Sub Divisional Officer has allowed the appeal vide its order dated 30-10- 2007 and set aside the appointment of respondent No.1 on the post of Kotwar by recording its finding that no despatch number has been made and proclamation was served upon respondent No.1 who has been appointed as Kotwar, as such the entire proceeding is vitiated.
6. Being aggrieved with this order, an appeal was preferred before the Commissioner, Raipur Division and Commissioner Raipur Division vide its order dated 19-10-2011 has allowed the appeal filed by respondent No.1/Duryodhan by recording its finding that learned Tehsildar has rightly passed the order of appointment of respondent No. 1 on the post of Kotwar after due proclamation regarding appointment, as such it cannot be found faulty. It has also recorded its finding that the learned Sub Divisional Officer has not complied with the provisions of Sections 47 & 49 of the Code, as such it has quashed the order passed by the Sub Divisional Officer.
7. Being aggrieved with this order, the petitioner has preferred a revision under Section 50 of the Land Revenue Code before the Board of Revenue mainly contending that the order passed by the Additional Commissioner is illegal and the Sub Divisional Officer has rightly passed the order as the notice has not been served and there is no Neutral Citation 2024:CGHC:12456 4 endorsement regarding proclamation of the notice and the Sub Divisional Officer has rightly passed the impugned order which should not have been set aside by the learned Additional Commissioner and would pray for quashing of the order passed by the Additional Commissioner.
8. The Board of Revenue vide its impugned order dated 23-6-2017 has dismissed the revision and affirmed the order dated 19-10-2011 passed by the Additional Commissioner and the order of Naib Tahsildar dated 21-3-2007 and set aside the order passed by the Sub Divisional Officer on 30-7-2007. Being aggrieved with this order, the petitioner has preferred the present writ petition under Article 227 of the Constitution of India.
9. Learned Sr. counsel for the petitioner would submit that as per Section 41 Rule 6 of the CG Land Revenue Code, procedure of service of notice has been prescribed and according to Rule 6, process of service of notice shall be served by peon attached to Tahsil or by the Patel or may, in the case of notice, be sent by post. The peon or the Patel shall enter the date and particulars of the mode of service on the copy of the process retained by him, and this copy shall be returned to the officer who issued it. It has also been recorded a finding that the person who has served upon the notice has not been appointed as Peon or Patel and the person who has been appointed, the notice has been served upon him, thus, procedure has not been followed and accordingly the learned Sub- Divisional Officer has rightly quashed the appointment of respondent No. 1. Thereafter, it has directed to conduct fresh procedure for appointment and after following due procedure the appointment of Kortwar should be made which cannot be found faulty by the learned Additional Commissioner or Board of Revenue.
10. He would further submit that the order dated 30-10-2007 passed by the Sub Divisional Officer, was legal and justified as the mandatory requirement of the provisions made in the Land Revenue Code have Neutral Citation 2024:CGHC:12456 5 not been followed by the Naib Tahsildar, as such the Sub Divisional Officer has rightly passed the impugned order. He would further submit that once the legislature has provided any mode of performing duties, it has to be discharged in the same manner, otherwise it will vitiate the entire proceeding. To substantiate his submission, he has relied upon the judgments of Hon'ble Supreme Court in Ku. Sonia Bhatia vs. State of UP, reported in 1981 (2) SCC 585, Nelson Motis vs. Union of India, reported in AIR 1992 SC 1981 and the judgment of Hon'ble Supreme Court in Civil Appeal No 3123 of 2020 (Dr. Jaishri Laxmanrao Patil vs. The Chief Minister and another) and would pray for allowing the writ petition.
11. On the other hand, learned counsel appearing for respondent No.1 would submit that it is not in dispute that the petitioner is son of Ex- Kotwar but Sub Rule (2) of Rule 4 of the Code only provides that in making appointment of a Kotwar under Sub rule(1) preference may be given to the near relative of the Ex-Kotwar, but the same would occasion only when other things are equal. He would further submit that in the case in hand resolution of the Gram Panchayat was in favour of respondent No.1, therefore, the resolution being one of the parameters provided under Sub Rule 4 which has bearing on the entire selection process, it is not a matter whether other things were equal between the petitioner and the respondent No.4. Thus, sub rule (4) would not apply to assist the petitioner in the present case and would rely upon the judgment of co-ordinate Bench of this court in WPS No 4832 of 2007 (Smt. Laxmi Bai vs. State of Chahttisgarh and others) decided on 8-8-2019 and would pray for dismissal of the writ petition.
12. Learned State counsel also supported the impugned order.
13. I have heard learned counsel for the parties and perused the record with utmost satisfaction.
14. From the aforesaid discussion, the point to be determined by this court is whether procedure for appointment of Kotwar has been Neutral Citation 2024:CGHC:12456 6 followed by the Naib Tahsildar or not. To consider the provisions, it is expedient for this court to extract relevant provisions of Chhattisgarh Land Revenue Code, 1959 "230. Appointment of kotwars and their duties.-- (1) For each village, or group of villages, there shall be appointed, in accordance with rules made under Section 258 one or more kotwars for the performance of such duties as may be prescribed."
15. In exercise of the power conferred under Section 258 of the Code the Code, the Rules have been made for appointment of Kotwar. The State Government has framed Rules regarding Appointment, Punishment and Removal of Kotwar and other Duties on 15-6- 1966, Rule 4 which is required to be considered by this court is extracted as under.
"4 (1) On the occurrence of a vacancy in the post of a Kotwar the Revenue Officer, who is empowered to make appointment, shall invite application by means of a proclamation in the village and after considering the claims of the applicants shall select suitable person for such appointment within a reasonable time and shall briefly record his reasons for his selection. The Police should invariably consulted before making appointments.
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, pending regular appointment as required by sub rule(1) to fill up the vacancy permanently. (2) In making appointment of a Kotwar under Sub rule(1) preference may be given to the near relative of the ex-
Kotwar, other things being equal.
Note"- If the vacancy is caused by the suspension or dismissal of the previous incumbent for bad character, misconduct or dis-obedience and the effect of the dismissal would be lost if a member of his family is appointed to succeed him, relatives of the previous incumbent may not be appointed".
Neutral Citation 2024:CGHC:12456 7
16. Rule 4 of the Code provides that invitation of applications means by way of proclamation in the village and after considering the claims of the applicants shall select suitable person for such appointment within a reasonable time and shall briefly record the reason for his selection. The rules further provide that Police should invariably consult before making appointment. Accordingly, Tahsildar vide order dated 12-2- 2007 has issued proclamation and the application was invited and the matter was fixed on 12-3-2007. Thereafter, on 29-2-2012 only one application of respondent No.1/Duryodhan was submitted and since the time period for proclamation was not expired, therefore, the Tahsildar has adjourned the proceeding to 15-3-2007 and on that period also no application was received and the Naib Tahsildar has also called upon the report from the Police regarding character of the respondent No.1.
17. This court has called upon the records of the proceedings which clearly demonstrate that the proclamation was made on 12-2-2007 in which Up-Sarpanch of Gram Sarpanch Madamguda and Secretary of Gram Panchayat Madamguda have put their signatures and thereafter signature of respondent No.1 is also there with endorsement. The record of the case would further demonstrate that on 28-2-2008 objection was also submitted by the respondent No.1 contending that he has cleared Class 8th examination and he was son of Ex-Kotwar and he has experience also to discharge as Kotwar and his ancestors were also doing the job of Kotwar, therefore, after retirement, he should be given preference for appointment. Gram Panchayat has also recommended for appointment of respondent No.1 on the post of Kotwar. The record of the case would further demonstrate that not only Sarpanch, Upsarpanch, but also Panch and the villagers have put their signatures and as per resolution dated 15-2-2007, resolution was also in favour of respondent No. 1. The record of the case would clearly show that the Naib Tahsildar has also recorded the statement of Sarpanch who has also given his statement Neutral Citation 2024:CGHC:12456 8 in favour of respondent No.1 and the statement of respondent No/1 was also recorded wherein he has reiterated the same which he has mentioned in the application. Thereafter, Tahsildar has passed the order on 30-7-2007 appointing the petitioner on the post of Kortwar. The record of the case would clearly demonstrate that Naib Tahsildar has also called the report from the Police Station and after getting report only appointment was done. Thus, the submission made by learned Sr. counsel for the petitioner that the notice was received by respondent No.1 is incorrect submission of fact as there is no requirement of issuing the summon, the proclamation has to be done and the proclamation of format is also there in which signatures of Sarpanch, Up-sarpanch and Secretary of Gram Panchayat are there.
18. Now this court is examining the submission whether provisions of Section 41 Rule 6 of Land Revenue Code is to followed or not for recording such finding, it is necessary for this Court of consider for provisions of Section 41 of the Land Revenue Code and rule made therein. From bare perusal of the said provisions, it is quite vivid that Section 41 gives power to the Board to make rules and the Board is defined under the Land Revenue Code ie., the Board of Revenue. Rule 4 gives power to the Board to frame the rules. Rule 1 (b) deals with regulation of power of Revenue Officer to summon parties and witnesses and the grant of expenses to witnesses. Rule 7 of the Land Revenue Code deals with the procedure to be followed by the Board of Revenue. Rule 7 (b) deals with Rules regarding service of summons and notice and other procedure and thus learned Sr. counsel would submit that since Rule 7 Sub Rule (3) has not been followed, therefore, the proclamation done by the Naib Tahsildar is contrary to the procedure, as such it has vitiated the entire proceeding.
19. This submission cannot be considered as Rule 7 Sub Rule (3) is related to service of summons, notices and other processes summoning of the parties and witnesses in revenue cases whereas, Neutral Citation 2024:CGHC:12456 9 the Specific Kotwar appointment Rules have been framed by the State in exercise of its power under Section 230 of the Land Revenue Code. This Rule provides proclamation and there is no requirement of rules regarding service of notice to individual villagers while appointing the Kotwar of the village. Thus, the submission made by the learned counsel for the petitioner that the Rule 7 Sub Rule (3) has not been followed is misconception of facts as the rules are not applicable. It is well settled position of law that once the specific rules for appointment of Kotwar have been made by the State in exercise of power under Section 258 and the rules clearly provide proclamation and the rules made for this specific purpose of appointment of Kotwar provides specific procedure for proclamation then any non- compliance of the rule will vitiate the entire proceedings, as the law has been well settled that if under the law a particular things have to be done in a particular manner then it has to be done in a manner prescribed under that law.
20. Hon'ble the Supreme Court in case of Krishna Rai (dead) through Legal Representatives and others vs. Banaras Hindu University through Registrar and others, reported in (2002) 8 SCC 713 has considered this issue wherein the Hon'ble Supreme Court has held in para 32 as under.
"32. Further in the case of Tata Chemicals Ltd. Vs. Com- missioner of Customs (preventive), Jamnagar8, it has been laid down that there can be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law. Paragraph 18 of the said judgment is repro- duced below:
"18. The Tribunal's judgment has proceeded on the basis that even though the samples were drawn con- trary to law, the appellants would be estopped be- cause their representative was present when the samples were drawn and they did not object immedi- ately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply Neutral Citation 2024:CGHC:12456 10 proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, there- fore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that some- thing be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Au- thorities are not absolved from following the 8 2015 (11) SCC 628 law depending upon the acts of a par-
ticular assessee."
21. In the light of well settled position of law, since Rule 7 Sub Rule (3), under Section 41 of Land Revenue Code does not deal with the appointment of Kotwar and specific rules have been framed by the State Legislature that rules will be applicable only. From bare perusal of the rules for appointment of Kotwar, it is nowhere stated that notice should be served upon individual. In the present case the notice was duly signed by the Sarpanch, Upsarpanch and one of the candidates which does not vitiate the entire proceeding as the petitioner has nowhere stated that the proclamation has not been done and common public at large of the village could not aware regarding procedure for appointment of Kotwar. Thereafter, the Gram Panchayat in resolution dated 15-3-2007 has also recommended in favour of the petitioner. Thus, there is no ambiguity, illegality in the appointment order passed by the Tahsildar in favour of respondent No.1 which has been affirmed by the Additional Commissioner and the Board of Revenue also. The judgments cited by learned Sr. counsel for the petitioner are distinguishable from the facts of the present case.
22. Considering this aspect of the matter, I do not find any illegality or irregularity warranting any interference by this court. Accordingly, the Neutral Citation 2024:CGHC:12456 11 writ petition being devoid of merit is liable to be and is hereby dismissed.
23. Pending interlocutory applications, if any, stand disposed of.
Sd/-
(Narendra Kumar Vyas) JUDGE Raju