Indian Kanoon - Search engine for Indian Law

Heard learned counsel for the petitioner on the question of admission.

2. Learned counsel for the petitioner submits that one Vaman Ingle was posted as Kotwar of village Baroli and due to his death the process was started to appoint the new Kotwar and the applications were submitted by the petitioner as well as respondents for appointment as Kotwar. The respondent No.2 was appointed as Kotwar vide order dated 16.12.2015 being son of the erstwhile Kotwar. The said order was challenged by the petitioner by preferring an appeal and the appeal was allowed by the order dated 26.7.2017. Thereafter, the matter was remanded and after considering the applications and material on record by order dated 17.7.2018, Naib Tehsildar, Tehsil Shahpur passed the order to appoint the respondent No.2 as Kotwar of village Baroli. The said order was challenged by the present petitioner in appeal before the S.D.O. (Revenue) Burhanpur. The S.D.O. by order dated 5.12.2019, dismissed the appeal preferred by the petitioner. According to the petitioner, during this period, the respondent No.2 was convicted by the Sessions Judge Burhanpur by judgment dated 11.12.2018 passed in Criminal Appeal No.49/2018 whereby the victim has challenged the judgment of acquittal passed by the JMFC Burhanpur in Criminal Case No.510/2016. The respondent No.2 was convicted under Section 323/34 of IPC. However, he was released on probation. Thereafter, the petitioner filed appeal before the Additional Commissioner, Indore and the same was dismissed by order dated 24.8.2022. Hence, the present petition has been filed.

3. The main contention of the petitioner is that the respondent No.2 has been convicted by the Sessions Court in Criminal Appeal under Section 323/34 of IPC, therefore, he cannot be appointed on the post of Kotwar. However, fairly accepted that the conviction under Section 323/34 of IPC will not amount conviction in offence of moral turpitude. It is also not the case of the petitioner that the respondent No.2 has suppressed the fact of pendency of appeal. He relied on the judgment passed by the coordinate Bench in W.P. No.14219/2018 (Supa vs. Deepa) dated 2.11.2018 by which it was decided by the coordinate Bench that once the criminal antecedents against the petitioner has been taken into consideration by the Additional Commissioner, Indore as well as by the Board of Revenue, no interference is warranted as the appointing authority ought to have form the opinion on the basis of good character and antecedent. He further relied on the order passed by the coordinate Bench in W.P. No.3676/2018 (Rajpal Singh Nahar vs. State of M.P. and others) dated 13.1.2020 whereby it was held that it is very difficult to state that every assault is not an offence involving moral turpitude.

5. As per Section 230 of M.P.L.R.Code, for the purpose of appointment of Kotwar, the preference is required to be given to the nearest family members of the deceased-Kotwar. Respondent No.2 is the son of erstwhile Kotwar whereas the petitioner is only relative of the deceased-Kotwar. Apart from that, respondent No.2 is resident of same village whereas the petitioner is resident of village Anturli, Post Anturli Taluka Muttainaar, District Jalgaon (Maharastra).