WP227/6708/2008 of AWADHRAM Vs STATE OF CHHATTISGARH and OTHERS on 19 December 2008

ORDER

(Passed on 15 December. 2008)

Dhirendra Mishra, J.

1. I.A. No.2, application for taking documents on record is allowed and thedocuments are taken on record.documents are taken on record.

2. Heard on admission,

3. Tehsildar, Berla vide his order dated 21-12-1991 (Annexure-P/2) appointedthe petitioner as permanent Kotwar of village Taksiwa under Section 230 ofthe Chhattisgarh Land Revenue Code (for short 'the Code?).The SubDivisional Officer, Saja (Bemetara) vide his order dated 8-2-95 allowed theappeal preferred by respondent No.7 Dharamdas, set aside the order oftheTehsildar and remanded the matter to the Tehsildar with a direction toinitiate fresh proceedings for appointment by inviting applications after duepublication of notice in accordance with law.The petitioner's revisionagainst the order of SDO was allowed by the Additional Collector. TheAdditionalCommissioner,RaipurDivision vide hisorder dated28thSeptember, 1998 set aside the order of Collector and the order of SDO wasrestored.The Board of Revenue vide its order dated 22nd January, 2008again dismissed the revision preferred by the petitioner by the impugnedorder ofAnnexure-P/5.

4. Learned counsel for the petitioner submitted that the petitioner wasappointed as temporary Kotwar.Respondent Dharamdas's appeal againsthis appointment as temporary Kotwar was rejected by the SDO as also bythe Additional Commissioner and the petitioner wasworking as temporaryKotwar when the proceedings for appointment of permanent Kotwar wereinitiated by the Tehsildar.Since respondents No.7 and 8 were not partybefore the Tehsildar, they had no right to file appeal, as they were notappointed as temporary Kotwar.Respondent Dharamdas's appeal againsthis appointment as temporary Kotwar was rejected by the SDO as also bythe Additional Commissioner and the petitioner wasworking as temporaryKotwar when the proceedings for appointment of permanent Kotwar wereinitiated by the Tehsildar.Since respondents No.7 and 8 were not partybefore the Tehsildar, they had no right to file appeal, as they were not

aggrieved party.The appointment was made after publication of noticeinviting applicatiohs. From perusal of the order ofAdditional Collector, it isapparent that except the petitioner no other person applied for appointmentbefore Tehsildar.Since the petitioner had discharged the duties of Kotwarwithout any complaint, Tehsildar rightly appointed him as Kotwar.

5. Heard learned counsel for the petitioner.

6. TheSubDivisionalOfficerhasallowedtheappealof respondentDharamdas with a finding that: (i) respondent Dharamdas was party in theproceedings initiated for appointment of temporary Kotwar, he had alsopreferred[first][ appeal][ and][ second][ appeal][ against][ the][ appointment][ of][ the]petitioner and he was not made party, therefore, respondent No.7 was anecessary party; (ii) Tehsildar by order dated 30th October, 1991 directedissuance of proclamation and the last date for filing application was fbcedas 20th November, 1991.However, notice for publication was received bythe petitioner himself as temporary Kotwar on 19-11-91 and the same waspublished a day before the last date fbced for receiving application and thussufficient tinie was not given to desirous candidates for filing application forappointment.Dharamdas with a finding that: (i) respondent Dharamdas was party in theproceedings initiated for appointment of temporary Kotwar, he had alsopreferred[first][ appeal][ and][ second][ appeal][ against][ the][ appointment][ of][ the]petitioner and he was not made party, therefore, respondent No.7 was anecessary party; (ii) Tehsildar by order dated 30th October, 1991 directedissuance of proclamation and the last date for filing application was fbcedas 20th November, 1991.However, notice for publication was received bythe petitioner himself as temporary Kotwar on 19-11-91 and the same waspublished a day before the last date fbced for receiving application and thussufficient tinie was not given to desirous candidates for filing application forappointment.

7. The Additional Collector, without considering the reasonings assigned inorder of the SDO, allowed the revision on the grounds that the petitioner'sappointmentastemporaryKotwarwasupheldbytheAdditionalCommissioner; the former Kotwar Dashrath did not make any oral orwritten consent for appointment of any relative as Kotwar in his place,though, the respondents claimed themselves to be his relative/adopted sonand the petitioner has discharged his duties as temporary Kotwar for a longperiod without any complaint.

8. However, the revision preferred by respondent No.7 was allowed by theAdditional Commissioner.The Board of Revenue has dismissed thepetitioner's[revision][ with][ an][ obser^ation][ that][ learned][ Additional][ Collector]has not taken into consideration the patent illegality in publication ofproclamation[whereby][ applications][ were][ invited][ from][ the][ villagers][ for]appointment of permanent Kotwar. Setting aside the order of the Tehsildardated 12-12-91 and that ofAdditional Collector dated 21-8-95, the order ofSDO and Additional Commissioner has been affirmed and the matter hasbeen remanded to the Tehsildar, Berla to decide the same as per thedirections of the SDO and Additional Commissioner.

9. The three Revenue Courts i.e. SDO, Additional Commissioner and theBoard of Revenue, after carefully examining the record of the Tehsildar,have held that publication of proclamation for inviting application forappointment of Kotwar was made only a day before the last date fbced forreceipt of applications and, therefore, the same is illegal and contrary to therules.Villagers, including respondents No.7 and 8/ were not affordedsufficient time for applying for appointment, as a result no-one could applyexcept the petitioner.The objection, that the respondent was not a partybefore the Tehsildar and as such he had no right to file appeal, has beenrightly rejected, particularly, when he had applied for appointment oftemporaryKotwarandhehadalsopreferredappealagainsttheappointment of the petitioner as temporary Kotwar before the SDO and theAdditional Commissioner.Even otherwise, the order of Annexure-P/2 ofthe Tehsildar appointing the petitioner as permanent Kotwar does notmention that the appointment was made after following due procedureprescribed[under][ Section][ 230][ of][ the][ Code][ and][ the][ rules][ made][ thereunder.]Therefore, in the considered opinion of this Court, the order impugned of f1^»]lis"<^^^s5

the Board of Revenue confirming the orders of Additional Commissionerand SDO is strictly in accordance with law. There is no illegality, infirmityor jurisdictional error committed by the Board of Revenue warrantinginterference in writ jurisdiction under Article 227 of the Constitution ofIndia.

Barve

lO.The petition being devoid of substance deservres to be dismissed and isaccordingly dismissed at the admission stage itself.

Sd/-Dhirendra MishraJudge

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