Chattisgarh High Court
Jyoti Manikpuri vs Chhabidas Manikpuri on 10 September, 2024
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2024:CGHC:35420
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 3391 of 2024
1-Jyoti Manikpuri D/o Kunjaldas Manikpuri Aged About 23 Years R/o Village
Bachedi, Tahsil Barla, District - Bemetara, Chhattisgarh.
... Petitioner
versus
1 - Chhabidas Manikpuri S/o Brijbhushandas Manikpuri Aged About 35 Years R/o
Village Bachedi, Tahsil Berla, District - Bemetara, Chhattisgarh.
2 - State Of Chhattisgarh Through Principal Secretary, Revenue Department,
Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District - Raipur, Chhattisgarh.
3-Commissioner Durg Division, Durg, Chhattisgarh.
4-Collector Bemetara, District-Bemetara, Chhattisgarh.
5-Sub Divisional Officer (R) Berla, District-Bemetara, Chhattisgarh.
6 - Naib Tahsildar Berla, District - Bemetara, Chhattisgarh.
... Respondents
For Petitioner : Mr. T.K. Jha, Advocate.
For Respondent No.1 : Mr. Akash Kumar Kundu, Advocate.
For State : Mr. Vedant Sadangi, PL.
SB: Hon'ble Shri Parth Prateem Sahu, Judge
ORDER ON BOARD
10/09/2024
1. This writ petition is filed challenging the order dated 22.5.2024 passed by Board of Revenue in Revision Case No.2N/23/21A-56/119/2024, whereby revision filed by the petitioner was dismissed.
2. Learned counsel for the petitioner submits that Kunjlal Das Manikpuri, father of petitioner, was earlier appointed as Kotwar of village Panchayat Bachedi Tahsil-Berla, District Bemetara. Due to his health condition, he Digitally signed by NISHA submitted resignation and thereafter petitioner was appointed as NISHA DUBEY DUBEY Date:
2024.09.18 10:21:19 +0530 2 temporary Kotwar vide order dated 21.12.2021. Appointment of petitioner as temporary Kotwar was put to challenge by respondent No.1 before the SDO (R) Berla by filing an appeal, which was dismissed vide order dated 2.9.2022 against which a second appeal was preferred in which the Commissioner directed to initiate proceedings of appointment of permanent Kotwar and accordingly, proceeding for appointment of permanent Kotwar was initiated. Village Panchayat-Bachedi, Tahsil-Berla, District-Bemetara vide resolution dated 30.1.2023 considered the candidature of petitioner as also respondent No.1 for appointment as Kotwar and passed the resolution recommending name of respondent No.1 for appointment as Kotwar. He contended that village Panchayat in its resolution has not assigned any reason for excluding name of petitioner for appointment as Kotwar although she is having preferential right for appointment in view Rule 4 (2) of the Rules of Appointment, Punishment and Removal of Kotwar and their Duties (for short 'the Rules') framed under Section 230 of the Chhattisgarh Land Revenue Code, 1959 (henceforth 'the Code of 1959'). Tehsildar in the order of appointment dated 6.2.2023 only considered recommendation of village Panchayat made vide resolution dated 30.1.2023 and did not consider relevant provision under Rules framed under Section 240 of the Code, in particular Rule 4 (2). The appointing authority has also not assigned any specific reason for excluding name of petitioner or appointing respondent No.1. As petitioner and respondent are having all things equal, therefore, petitioner ought to have been given preference over respondent No.1. In support of his contention he placed reliance upon the order dated 17.10.2023 passed by Coordinate Bench in WP227 No.2261 of 2009.
3. Learned State counsel opposing submissions made by counsel for petitioner, would submit that Tehsildar initiated proceeding for appointment of Permanent Kotwar, advertisement was issued, applications were received by village Panchayat and vide resolution dated 3 30.1.2023 village panchayat recommended/decided to appoint respondent No.1 as Kotwar of village Panchayat Bachedi and accordingly, name of respondent No.1 is forwarded along with resolution of village Panchayat. There is no error in the proceedings of appointment of respondent No.1 as Kotwar of village Panchayat Bachedi.
4. Learned counsel for respondent No.1 vehemently opposes the submission of counsel for petitioner and would submit that only ground raised by counsel for petitioner, that the petitioner has not been given preference as provided under sub-rule (2) of Rule 4 of Rules. Preference as mentioned under Rule 4(2) is not outright preference, he submits that preference can be given only when both the persons under the zone of consideration are equal in all other manners. He submits that considering entirety of candidature of respondent No.1, his status and other requirements, he was found suitable and eligible for appointment as Kotwar and as such, village Panchayat recommended name of respondent No.1, which is also one of the part of procedure for appointment of Kotwar. The Tehsildar, who is appointing authority, has considered the resolution and recommendation of village Panchayat, recorded statement/evidence of other villagers and based on the resolution of village Panchayat; statement made by villagers and analyzing the entirety of facts, appointed respondent No.1 as village Kotwar. He submits that application of sub-rule (2) of Rule 4 will come into play only when other things are equal. As the recommendation is in favor of respondent No.1, therefore, no benefit can be extended in favor of the petitioner under Rule 4 (2) and in support of his contention he placed upon the order dated 8.8.2019 passed by Coordinate Bench of this Court in WPS 4832 of 2007.
5. Heard learned counsel for the parties and also perused the documents placed along with record.
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6. It is not in dispute that father of petitioner Kunjlal Das Manikpuri was earlier appointed and worked as Kotwar. He submitted resignation owing to his health condition. After resignation of father of petitioner, she was initially appointed as Temporary Kotwar on 21.12.2021, however, her appointment as temporary Kotwar was put to challenge by respondent No.1. Respondent No.3 vide order dated 3.11.2022 directed for initiating proceedings for appointment of Permanent Kotwar. Petitioner has placed on record the resolution of village Panchayat dated 30.1.2023, in which, the village Panchayat has considered name of petitioner as also respondent No.1 for appointment of Kotwar and it is mentioned thereunder that out of 13 members present, 12 voted in favor of respondent No.1, accordingly, his name was recommended for appointment as Kotwar of village Panchayat Bachedi. Tehsildar, who is appointing authority for appointment of Kotwar under Section 230 of the Chhattisgarh Land Revenue Code, 1959, considering resolution and recommendation of village Panchayat as also the evidence of villagers recorded by him, has passed the order dated 6.2.2023 appointing respondent No.1 as village Kotwar. The entire order of Tahsildar does not reflect that he has taken note of the provision under Rule 4 (2) of the Rules, which reads as under:-
"4. (1) xxxxx (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."
7. Bare perusal of the afore quoted provision would show that if all things being equal near relative of ex-Kotwar may be given preference in appointment as Kotwar. Petitioner is daughter of ex-Kotwar, who submitted his resignation. Rule 4 (2) provides for preference to be given to near relative, therefore, even if village Panchayat has recommended name of other person than that of petitioner, who is near relative of ex- 5 Kotwar, then also it is for the appointing authority to consider resolution vis-a-vis the Rules applicable for appointment to the post of Kotwar. Since there is no consideration of Rule 4 (2) in the order of Tahsildar appointing respondent No.1 as village Kotwar, in the opinion of this Court, Tehsildar erred in passing the order of appointment of Kotwar in favor of respondent No.1. Further, the Board of Revenue in impugned order, has made only cursory observation that petitioner is not resident of same village, which was neither the consideration in proceeding/resolution of village Panchayat nor the fact available or placed for consideration before the appointing authority i.e. Tehsildar, therefore, said observation made by Board of Revenue is contrary to the records or the proceedings for the appointment of Kotwar of village Panchayat-Bachedi.
8. In the order dated 17.10.2013 passed in WP227 No.2261 of 2009 (supra) the Coordinate Bench while considering appointment of Kotwar made without considering the provision under Rule 4 (2) of the Rules, has observed thus:-
"6. In the opinion of this Court, Rule 4 of the Rules does not make any provision making recommendation of the Gram Panchayat binding on the appointing authority. On the contrary, sub-rule (2) of Rule 4 prescribes that while making appointment of a Kotwar, preference may be given to the near relative of the Ex- Kotwar, other things being equal.
7. In view of the said Rule and the Tahsildar having found that both the candidates are suitable and there being no finding that the petitioner is more meritorious than Respondent No.2, the provision of Sub-rule (2) of Rule 4 gets attracted and Respondent No.2 was entitled for preference. The Board of Revenue has considered this aspect of matter and has allowed the revision petition preferred by Respondents No.1 & 2. 6
9. So far as the decision dated 8.8.2019 in WPS No.4832/2007, relied upon by learned counsel for respondent No.1 is concerned, the same is distinguishable on facts. In that case, the Court based on the material available has observed that it is not a matter where other things were equal in between petitioner and respondent No.4 therein.
10.Considering the provision under Rule 4 (2) of the Rules and the fact that in the order passed by the Tehsildar there is no consideration of the provision under Rule 4(2), in the opinion of this Court, the order of appointment passed by the respondent No.6 is not sustainable.
11. Accordingly, writ petition is allowed in part. Impugned order dated 22.5.2024 passed by Board of Revenue and order dated 6.2.2023 passed by Tahsildar appointing respondent No.1 as Kotwar are set aside. The matter is remitted back to respondent No.6 for reconsidering claim of petitioner as also respondent No.1 for appointment as permanent Kotwar based on the recommendation/resolution of village Panchayat as also keeping in mind the provision of Rule 4 (2) of the Rules for appointment of Kotwar.
12.Let the exercise for appointment of permanent Kotwar be concluded within further period of two months from the date of receipt of the order.
13.Certified copy as per rules.
14. Sd/-
(Parth Prateem Sahu) Judge Nisha