Brajesh Singh Tomar vs State Of Madhya Pradesh And Others

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona Virus (COVID-19) and considering the advisories issued

by the government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being

represented by the respective counsel through video conferencing, following the norms of social distancing/physical distancing in letter and spirit.

Heard learned counsel for the parties.

The present petition is being filed challenging the order dated 03.06.2020 passed by the respondents, whereby, the petitioner has been shifted from

Halka No. 8, Bargawan to Halka No.29, Kirkiri. This order is bad in law and is without jurisdiction because as per the settled principal that Sub

Divisional Officer does not have any power to transfer or shift patwari (the petitioner). This power is vested only with the Collector. Thus, the order

impugned is passed by the Sub Divisional Officer shifting the petitioner from one halka number to another patwari halka number is without jurisdiction.

It is submitted that initially the order dated 01.06.2020 was passed, whereby the petitioner was shifted from Halka No. 8 to Halka No. 29 and Smt.

Sadhna Tomar was shifted in place of petitioner, but subsequently, the order was modified and the order impugned has been passed, whereby, the

posting of petitioner remains the same, but in place of Smt. Sadhna Tomar, who is made a party respondent in the petition has been changed. It is

submitted that the power of transferring or shifting the patwaries is solely vested with the Collector. He has drawn attention of this Court to Annexure

P/4 the relevant extract of manual of Land Records and has argued that the Collector is only competent authority to appoint a patwari. Thus, once the

appointing authority of the patwaries is Collector, then the Sub Divisional Officer is having no power to shift the patwaries like petitioner from one

Halka Number to another Halka number. He has relied upon the judgment passed by the coordinate Bench of this Court in the case of W.P. No.

18932/2019 order dated 17.09.2019 as well as in the case of Mukhtar Ali Vs. State of M.P. and others reported in 2004 (1) M.P.H.T. 73 and has

argued that the Hon'ble Court has categorically held that the Collector to be a competent authority as far as managing the affairs of the patwaries are

concerned. Learned counsel for the petitioner submits that he has submitted a detailed representation against the impugned order, but the same has not

been considered and dealt by the authorities. It is further argued that during this COVID-19 scenario shifting or transferring the patwaries like

petitioner is not feasible as the people are facing great hardship to shift from one place to another. In the aforesaid submissions, he prays for

quashment of the impugned order.

Per contra, learned counsel for the State has denied all the arguments raised by the learned counsel for the petitioner and has argued that the order

impugned is well reasoned and a justified order. It cannot be said to be a transfer order as from the perusal of language of order impugned (Annexure

P/1) it is clearly seen that the petitioner has only been given the charge of patwari Halka No.29 vide impugned order. It is settled law that grant of

taking of away of charge is not a vested right. It is further submitted that as far as competence of Sub Divisional Officer is concerned, the full Bench

of this Court in the case of Kalabai Vs. State of M.P. reported in 2011 RN 129 and has argued that the question of competence of authority to deal

with the service conditions of a patwari is being considered by the Full Bench of this Court and has categorically observed that in pursuance to the Sub

Section 2 of Section 104 of the M.P.L.R.C by virtue of delegation of powers under Section 22 of the Code to SDO and under Section 24 of the Code

to Record-of-Rights Officers therefore, the Collector or, after the delegation of powers the Sub Divisional Officer or Records-of-Rights Officer, may

appoint or suspend/dismiss a patwari under Section 104(2) of the Code. It is submitted that the Sub Divisional Officers by virtue of delegation of

powers has become a competent authority to deal with the service conditions of the patwaries. He has further relied upon the judgment passed by this

Court in the case of Ravindra Kumar Gupta Vs. State of M.P. reported in 2010(4) MPLJ 43 9and has submitted that there is no indefinable right to

the patwaries to hold the particular Halka numbers. The Sub Divisional Officers is having ample powers to deal with the service conditions of the

patwaries and can post them as per the requirement. In such circumstances, the arguments which have been advanced by the learned counsel for the

petitioner is of no value. He submits that the petition is meritless and devoid of substance and deserves to be dismissed.

Heard learned counsel for the parties and perused the record.

From the perusal of the record it is seen that the solitary the ground which has been taken by the learned counsel for the petitioner challenging the

impugned order is the competence of the authority to transfer the petitioner. However, from the impugned order it is seen that the same is not a

transfer and it is only change of charge from one patwari Halka number to another patwari Halka number. Section 104 of M.P.L.R.C deals with the

powers to monitor the service conditions of the patwaries including their appointment and termination. This Court in the case of Manmohan Singh

Thakre Vs. Govt. of M.P. And others.

reported in 1978 (2) MPWN 116 has considered the similar situation and has held that “Section 104 authorizes the collector to appoint a patwari

and the State Government vide its notification dated 01.10.1960 has directed all the Sub Divisional Officers to exercise powers of a Collector under

Sub-section (2) of Section 104 of the Code. The Sub Divisional Officer has been conferred power of the Collector to appoint a patwari in view of

provisions of Section 22(2) of the Code and the Notification dated 01.10.1959 and as a consequence thereof he also has the power to remove a

patwari as well.†Prior to amendment in Sub-section (2) of Section 104, the Collector could appoint a patwari 'subject to rules made under Section

258'. After the delegation of these words the appointment is not subject to any rules, but may be made according to administrative policy and

appointing powers vest in the Collector. Section 16 of M.P. General Clauses Act, 1957, lays down that unless a different intention appears, the

authority having power to make appointment shall also have power to suspend or dismiss. Hence, power of appointment of patwari includes the power

of suspend or dismiss. Since the State Government delegated Collector's powers of Section 104(2) under Section 22 to S.D.O and under Section 24 of

the Code to Record-of-Rights Officers therefore, the Collector or, after the delegation of powers the Sub Divisional Officer or Record-of-Rights

Officer, may appoint, suspend or dismiss a patwari under Section 104(2) of M.P.L.R.C. The Division Bench of this Court in the case of Manmohan

Singh Thaker (Supra) and in the case of Mangilal Vs. State of M.P. reported in 1995 RN 67 (DB) have concurrently held that the Sub-Divisional

Officer can remove dismiss a patwari from the post. The case law relied upon by the learned counsel for the petitioner are of no help to the petitioner

because in the case Mukhtar Ali (Supra) the transfer order was issued by the Collector and was put to challenge stating that the Sub-Divisional

Officer is the competent authority, but this Court has categorically held that as originally the Collector under Section 104(2) of the Code is the

appointing authority of the patwari and is empower to transfer the patwari from one Tahsil to another Tahsil within the district. But, by virtue of

delegation of powers to the SDOs by the State Government, the SDO can also exercise the powers monitoring the service conditions of the patwaries

as per the requirement of work. The patwaries can be posted from one Halka number to another Halka number within the same district as per the

requirement and the directions issued by the concerning SDOs. There is no dispute with respect to fact that the SDO has not competent to post a

patwari from one Halka number to another Halka number.

Thus, considering the overall facts and circumstances of the case, there are no merits in the writ petition. The order impugned has rightly been passed,

the same does not call for any interference in the present writ petition. Accordingly, the petition is hereby dismissed.

E- copy of this order be sent to the trial Court concerned for compliance, if possible for the office of this Court.

Certified copy/ e-copy as per rules/directions.