Anand Das vs Mukhiram and Others

Sanjay K. Agrawal, J.�The root question involved in this writ petition is whether the respondent No. 1 duly elected Panch can be validly appointed as Kotwar under the Chhattisgarh Land Revenue Code, 1959 (for short, Code). Post of Kotwar of village Laria, Tehsil Palari, District Raipur, fell vacant on account of removal of ex Kotwar Aghan Das. The Tehsildar, being appointing authority, registered a revenue case No. 2/A-56/2007-08 and issued notification inviting applications for the said post of Kotwar. The present petitioner, respondent No. 1 herein and four other persons namely Chhannu lal, Balbhadra, Gopaldas and Sonkunwar made applications claiming their candidature. Thereafter, the Tehsildar, Palari, verified their credentials and also called resolution from Gram Panchayat, Sitapar, as provided in Rule 4(1) of the Kotwari Rules, and accordingly resolution No. 1 dated 31.03.2008 was sent in favour of respondent No. 1 herein for his appointment on the post of Kotwar. The Tehsildar found that respondent No. 1/Mukhiram doesn''t suffer from any ineligibility and fully eligible candidate for the said post, appointed him as Kotwar by order dated 20.05.2008 (Annexure P/4) in exercise of powers conferred under Section 230 of Land Revenue Code, 1959 (for short, Code) read with Section 4(1) of the Kotwari Rules.

Aggrieved by the order dated 20.05.2008 appointing respondent No. 1 as Kotwar, present petitioner filed an appeal being revenue Appeal No. 43/A-56/2007-08 before the Sub-Divisional Officer, Revenue (for short, SDO). The said appellate authority, by its order dated 20.08.2008 (Annexure P/6) came to a conclusion that resolution passed as provided in Rule 4(1) is not in accordance with Kotwari Rules, and set aside appointment of respondent No. 1 and appointed the petitioner herein as Kotwar holding that he being relative of ex-Kotwar is entitled for preference under Rule 4(2) of Kotwari Rules. Against the said order, the respondent No. 1 preferred Second Appeal before the Commissioner under Section 44(2) of the Code. The Commissioner accepted the finding of SDO resulting into dismissal of appeal and in affirming of order passed by the SDO appointing petitioner herein on the post of Kotwar.

Questioning the legality and correctness of order passed by the SDO as affirmed by the Commissioner respondent No. 1 herein preferred a revision before the Board of Revenue under Section 50 of the Code stating inter alia that order passed by the SDO is absolutely illegal and unsustainable in law.

The Board of Revenue, by order impugned dated 28.05.2010 (Annexure P/1) allowed the revision filed by the respondent No. 1 herein holding that appointment of respondent No. 1 as Kotwar by the Tehsildar was in accordance with Kotwari Rules and interference made by the SDO was not called for and the Commissioner has also committed illegality in affirming the same.

Invoking the extraordinary jurisdiction of this court, the petitioner has filed this petition under Article 227 of the Constitution of India questioning the order of Board of Revenue setting aside the order of SDO and Commissioner appointing the petitioner on the post of Kotwar.

Appearing for the petitioner Shri Prateek Sharma learned counsel would submit that respondent No. 1 was already holding the post of Panch in the concerned Gram Panchayat on the date i.e. 20.05.2008 when he was appointed on the post of Kotwar. Elaborating his submission, Shri Sharma would further submit that post of Kotwar under the Code is a Civil Post and as such the petitioner having been democratically elected cannot be appointed on the Civil Post as his resignation on the said post was accepted on 25.05.2008 after his appointment on the post of Kotwar on 20.05.2008, and as such, the resolution passed as well as the order appointing respondent No. 1 on the post of Kotwar is absolutely illegal and bad in law.

Despite service of notice, none appears on behalf of respondent No. 1.

Appearing for State Shri Arvind Dubey learned counsel would submit that procedure followed by the appointing authority/Tehsildar was absolutely fair and just as resolution from Gram Panchayat, Sitapar was sought for and after verifying the credentials of all the candidates, the appointing authority has passed the order, and as such, the Board of Revenue has rightly restored the order passed by the Tehsildar appointing respondent No. 1 herein on the post of Kotwar.

I have heard the counsel appearing for the parties, considered their rival submissions and also perused the order impugned carefully.

In order to consider the question raised at the bar, it would be proper to notice Section 230 of the Code which provides for appointment of Kotwar and their duties. Section 230(1) provides as under :

"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."

A careful and close perusal of sub-section (1) of Section 230 of the Code would show that 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.

Rules has been framed under Section 230 of the Code for appointment of Kotwar that is called as "Rules regarding Appointment, Punishment and Removal of Kotwars and Their Duties". Sub-rule (3) of said Rules prescribes appointing authority and sub-rule (4) provides the procedure to be followed while making appointment of Kotwar. Rule 4(1) of said Rules provides as under :

"On the occurrence of a vacancy in the post of a Kotwar, the Revenue Officer, who is empowered to make appointment, after receiving a resolution duly passed by the Gram Sabha in whose area the post of Kotwar is vacant, shall appoint an eligible person on the post of Kotwar, if the person proposed in the resolution does not fulfil the qualification prescribed in Rule 2, the authorized Revenue Officer shall reject the resolution after recording the reasons in writing and intimate the Gram Sabha and call for a fresh proposal."

It is an admitted position on record that respondent No. 1 was duly elected Panch on 31.03.2008 when the Gram Panchayat, Lariya resolved in his favour recommending his name for appointment on the said post of Kotwar and pursuant to said resolution dated 31-03-2008 the respondent No. 1 was appointed by the appointing authority i.e. Tehsildar on the post of Kotwar on 20.05.2008 and only thereafter his resignation submitted on 15.05.2008 which was accepted on 25.05.2008. Thus, the respondent No. 1 was holding the office of Panch on the date when he was appointed on the said post of Kotwar on 20.05.2008.

Section 36 of the Panchayat Raj Adhiniyam, 1993 (for short, the Act, 1993) provides for disqualification for being bearer of Panchayat which reads as under :

"36. Disqualification for being office bearer of Panchayat-

No person shall be eligible to bear office bearer of Panchayat-

(a).....

(b).....

(c).....

(d) Hold an office of profit under any panchayat or is in the service of any other local authority or co-operative society or the State Govt., or Central Govt. or any public sector undertaking under the control of the Central Govt. or the State Govt.

Provided that no person shall be deemed to have incurred disqualification under this clause by reason of being appointed as a Patel under the Madhya Pradesh Land Revenue Code, 1959."

Thus, the office bearer of a Panchayat, cannot be a Govt. servant, as being the Govt. servant is a disqualification for the post of Panch, but a Patel appointed under Section 222 of the Code can be appointed as Panch or office bearer of a Panchayat.

Sub-section (2) of Section 36 of the Act, 1993 provides that if any person having been elected as an office bearer of a Panchayat, subsequently becomes subject to any of the disqualification mentioned in sub-section (1), he shall cease to be such office bearer.

It is well settled law that the post of Kotwar under the Code is a Civil Post for the purpose of Article 311 of the Constitution of India. Way-back in the year 1965, Division Bench of M.P. High Court in case of Hira v. State, 1965 RN 307 (CN 82) has held that Kotwar under the Code is a Civil Post for the purpose of Article 311 of the Constitution of India and held as under :

"....But as a Chowkidar before the Code or as a Kotwar thereafter he, no doubt, held a civil post. The term ''civil post'' for the purpose of Article 311 of the Constitution has to be taken to mean a post which is not a military post. The object in using that term is to exclude members of defence services and persons holding posts connected with defence. Jagannath Prasad Sharma Vs. State of Uttar Pradesh and Others, ."

The aforesaid principle of law has been further followed in case of Dinesh v. Board of Revenue and others (1998 RN 343) holding that Kotwar appointed under the Code is a civil post and is entitled to avail protection of Article 311 of the Constitution of India.

Thus, the respondent No. 1 holding the post of Panch of a village cannot be validly appointed on the post of "Kotwar" as on the appointment on the post of Kotwar, he will be disqualified by virtue of Section 36(2) read with Section 36(1) of the Act, 1993 to hold the post of Panch, and therefore, there is a bar in the Act, 1993, to appoint a Panch on the role of State Govt. including on the civil post of Kotwar.

Apart from this, it is well settled principle of service jurisprudence under the Fundamental Rules that an officer cannot be appointed substantively to more than one post and he cannot also hold two posts simultaneously in substantial capacity (Kindly see S.S. Bola and others Vs. B.D. Sardana and others,

Thus, the Respondent No. 1 being a Pancha as the Gram Panchayat resolved in his favour recommending him to be appointed on 31.03.2008 and finally he was appointed by the Tehsildar on 20.05.2008 on the civil post of Kotwar and his resignation was accepted only on 25.05.2008, thus, an elected person holding the post of Panch is not eligible to be appointed on the civil post of Kotwar under Section 230 of the Code.

Consequently, the orders passed by the Tehsildar as well as Board of Revenue are hereby quashed. The order of SDO directing petitioner to be appointed on the post of Kotwar is also liable to be and is hereby set aside as there was no duly constituted resolution by the Gram Panchayat. It is directed that the appointing authority shall initiate fresh process for appointment of Kotwar for village Lariya, Tehsil Palari, Distt. Raipur strictly in accordance with Rule 4(1) of Kotwari Rules. It will open for the petitioner to make his candidature along with all credentials. It is also made clear that this court has not expressed any opinion on eligibility or otherwise of petitioner as well as respondent No. 1. No order as to cost.