Madhya Pradesh High Court
Kavita @ Neetu vs The State Of Madhya Pradesh on 1 November, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 1 st OF NOVEMBER, 2023
WRIT PETITION No. 645 of 2019
BETWEEN:-
KAVITA @ NEETU W/O SHRI KRISHNA RAKSIYA D/O
LATE SHRI JAGGAN, AGED ABOUT 34 YEARS,
OCCUPATION: VILLAGE KOTWAR VILLAGE BAKUD
TEHSIL GHODADONGRI DISTT. BETUL (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI PRAVESH NAVERIYA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
COLLECTOR BETUL (MADHYA PRADESH)
2. TEHSILDAR ,GHODADONGRI, DISTT. BETUL MP
DISTT. BETUL M.P. (MADHYA PRADESH)
3. RAKESH S/O SHRI RANGLAL, AGED ABOUT 38
YEAR S , OCCUPATION: BY CASTE KATIYA R/O
VILLAGE BAKUD TEHSIL GHODADONGRI
(MADHYA PRADESH)
4. SMT. SAROJ W/O SHRI SUBHASH BHORSE R/O
VILLAGE BAKUD TEHSIL GHODADONGRI
(MADHYA PRADESH)
5. ADDITIONAL COMMISSIONER NARMADAPURAM
D I V I S I O N NARMADAPURAM (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VIJAY KUMAR SHUKLA - PANEL LAWYER FOR THE STATE)
(BY SHRI PRAKASH GUPTA - ADVOCATE FOR RESPONDENT NO.3)
This petition coming on for admission this day, th e court passed the
following:
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 11/2/2023
11:52:07 AM
2
ORDER
This petition is filed by the petitioner who happens to be daughter of Ex- Kotwar, Late Shri Jaggan, of village Bakud, Tehsil Ghodadongri, District Betul being aggrieved of order dated 31.12.2018 (Anneuxre P-3) passed by learned Additional Commissioner, Narmadapuram, Division Hoshangabad in Case No.251/Appeal/2017-18 whereby the learned Additional Commissioner has set aside the orders of the Tehsildar Godadongri and the Sub Divisional Officer, Shahpur, District Betul. Vide order dated 28.09.2017 passed by the Tehsildar - Godadongri, District - Betul in Case No.01v/56/2016-17, it was directed to appoint petitioner as a 'Kotwar'. This order was put to challenge before the Sub Divisional Officer (Revenue), Shahpur, District - Betul in Revenue Case No.0005/appeal/2017-18 by Rakesh S/o Ranglal.
Learned Sub Divisional Officer, vide order dated 30.11.2017, dismissed the appeal.
Against the order of dismissal of appeal Rakesh preferred Second Appeal before the Additional Commissioner, Narmadapuram, Division Hoshangabad which was registered as Case No.251/Appeal/year 2017-18 wherein learned Additional Commissioner recorded two findings before arriving at a conclusion namely; present petitioner is married in Chhindwara District and after marriage her husband started living in the village Bakud with a view to obtain appointment as 'Kotwar' and, secondly, that a criminal case was registered against the present petitioner in the Court of J.M.F.C., Betul under Section 420, 467 and 468 of IPC and, on these grounds, impugned orders of the Tehsildar and the Sub Divisional Officer have been set aside and matter is remitted to the Tehsildar to conduct an enquiry afresh.
Shri Pravesh Naveriya, learned counsel for the petitioner submits that Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 11/2/2023 11:52:07 AM 3 Commissioner has noted a fact in the impugned order that the Gram Panchayat while passing a resolution whereby this resolution was passed on the basis of voting by majority in favour of the petitioner committed an irregularity and that has been treated to be violation of the provisions contained in Section 230 of the M.P. Land Revenue Code, 1959.
It is submitted that this finding is cryptic and, in fact, subsequent registration of a criminal case will not be a disqualification.
Shri Prakash Gupta, learned counsel for respondent No.3 submits that though he has not produced copy of the order, but he has produced copy of the Daira Register which shows that on the basis of compromise private respondent was acquitted of charges under Section 294, 323 and 506 of IPC and in light of the judgment of Hon'ble Supreme Court in Pramod Singh Kirar Vs. State of Madhya Pradesh and Others, decided on 02.12.2022 in Civil Appeal Nos. 8934-8935 of 2022 (@ Special Leave Petition (C) Nos. 14571-72 of 2022), it is held that if acquittal is made on compromise then that will not be a disqualification for appointment.
Shri Vijay Kumar Shukla, learned Panel Lawyer for the State submits that Rules framed under Section 230 of MPLRC regarding appointment, punishment and removal of 'Kotwars' and their duties in Rule 4(1) specifically provides for a resolution of Gram Sabha.
After hearing learned counsel for the parties and gong through the record, it is evident that Rules made under Section 230 of MPLRC provides for a resolution duly passed by the Gram Sabha for Gram Sabhas in whose area the post of 'Kotwar' is vacant.
Thus, no mechanism for passing of a resolution has been given that whether it has to be passed without voting and could not have been passed after Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 11/2/2023 11:52:07 AM 4 resorting to the process of voting so to arrive at the majority view of the Gram Sabha. Thus, Additional Commissioner erred in not reading the Rules and arbitrarily mentioning the fact that the provisions contained in Section 230 of MPLRC were not followed in letter and spirit. To this extent, it is evident that Additional Commissioner was not acting legally and within the scope of the authority vested in him in terms of the Rules so framed under Section 230 of MPLRC. Without referring to Rule 4(1), he could not have made such generalistic observations.
Second ground is that petitioner started living with her husband in village Bakud despite her marriage in District Chhindwara is again of no relevance because Commissioner could not have curtailed a right of a person to decide place of residence which is a fundamental right. In India, a person can chose to reside in any territory on his own volition and it was not the case before the Additional Commissioner that petitioner furnished incorrect information about her residence at village Bakud despite her marriage in Chhindwara. Thus, if a husband decides to reside with his wife along with her in her parents house that cannot be treated to be a disqualification. That will if the treatment as has been given by the learned Additional Commissioner is allowed to be accepted, then that will amount to violating the fundamental right of a citizen to decide to reside in any territory of the country of India.
Third ground is that Additional Commissioner noted that a case was registered before the Court of JMFC, Betul under Section 420, 467 and 468 of IPC. It is noted with the help of Shri Prakash Gupta, who has filed all these documents along with his reply 7619/2023 that private complaint was filed on 20.01.2017, cognizance was taken on 05.09.2018 after passing of the orders by Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 11/2/2023 11:52:07 AM 5 the Tehsildar and the Sub Divisional Officer, therefore, on the date of the orders being passed by the Tehsildar or the Sub Divisional Officer in absence of cognizance being taken by the competent Court in the matter of a private complaint cannot be said that any criminal proceeding was pending against the petitioner and to that extent again Additional Commissioner erred in not appreciating the legal provisions of law in the correct perspective.
Fourth ground is that sub-rule (2) of Rule 4 of the Rules so framed for appointment of 'Kotwar' provides that preference may be given to the near relative of the Ex-Kotwar, other things being equal.
It is true as submitted by Shri Prakash Gupta that even private respondent was acquitted on the basis of a compromise but consideration of this fact that he had performed last rites of Jaggan or somebody else will not be sufficient evidence to treat him to be the near relative of Ex-Kotwar, when petitioner is the daughter of Ex-Kotwar, Jaggan, and there is no such genealogy available on record to note the same about the respondent and, therefore, in terms of sub-rule (2) of Rule 4, appointment of the petitioner has been wrongly set aside by the Additional Commissioner and, therefore, the order of the learned Additional Commissioner being cryptic and having been passed without appreciation of the Rules so framed under Section 230 of MPLRC and without making appreciation of the legal provisions cannot be given seal of approval.
Accordingly, order of the Additional Commissioner is set aside. Petition is allowed and disposed of. Parties to bear their own cost.
Certified copy as per rules.
(VIVEK AGARWAL) JUDGE Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 11/2/2023 11:52:07 AM 6 Tabish Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 11/2/2023 11:52:07 AM