Chhattisgarh Patwari Sangh vs State of Chhattisgarh and Others

Sunil Kumar Sinha, J.—These writ petitions are filed challenging the Circular dated 8-9-2009 (Annexure P-2) and Communication dated 17-9-2009 (Annexure P-3). Circular dated 8-9-2009 has been issued by the State on the name of the Governor to District Collectors and certain direction have been issued regarding transfer of Patwaris. Communication dated 17-9-2009 has been sent by Under Secretary, Government of Chhattisgarh to Prantaadhyaksh, Chhattisgarh Patwari Sangh, Raipur, whereby the reply of his letter dated 14-9-2009 has been given.

The contents of the impugned documents are as follows:--

Annexure P-2

Mr. T.K. Tiwari, learned Counsel appearing on behalf of the petitioners, argued that the State Government was having no authority or jurisdiction to issue such instruction to the District Collectors regarding transfer of the Patwaris. He referred to Rule 7 contained in M.P. Land Records Manual and argued that there is no such provision in the said Rule as contained in the above circular/communication, therefore, the directions issued through the above communication were without jurisdiction. He also referred to the provisions of Section 104 of the M.P. (C.G.) Land Revenue Code, 1959 and argued that even under such provisions, the State has not authority to issue such directions, therefore, the directions contained in the above memos are contrary to the law. He relied on the judgment of Punjab Water Supply and Sewerage Board, Hoshiarpur Vs. Ranjodh Singh and Others, ).

Per contra, Mr. Y.S. Thakur, learned Dy. Advocate General appearing on behalf of the State/respondent, opposed these arguments and supported the contents of the Circular/Communication. He argued that the above directions have been issued under the power of the State to issue executive directions. So long, the directions are not contrary to any law or Statutory or Non-statutory Rules or the Constitution, the same cannot be held to be illegal.

I have heard, the learned Counsel for the parties at length and have also perused the records of the writ petitions.

Article 154 (1) of the Constitution provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. This power includes acts which are necessary for general administration of the State. The power of the State executive are co-extensive with the Legislative powers of the State Legislature. The executive power of the State does not depend on Legislations, therefore, even the Legislature has power to make a law on a particular subject, the executive action by the Government would not be invalid merely on the ground that there is no Legislation to support such action.

Article 162 of the Constitution defines the extent of executive power of the State. It provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. This has two fold impact, first it limits the jurisdiction of the State to exercise executive powers in those fields only, on which the State Legislature has jurisdiction to make law; and second that such power vested with the State must be subject to the provisions of the Constitution, that is to say that exercise of the powers resulting into contravention of the constitutional provisions would not be permissible and would render ultra vires. It is, therefore, clear that if there is a Statutory Rule, the executive cannot ignore or act contrary to the Rule in exercise of executive power under Article 162. However, under executive power the State can give administrative instruction to its servant how to act in certain circumstances and it includes all power that may be needed to bring into effect the aims and object of the Constitution and the Statutory and Non-statutory Rules. So long the executive instruction of the Government are not contrary to the Rules or the Constitution, or prejudicial to the rights of the citizen, such instructions issued by the State cannot be held to be without jurisdiction or contrary to the law in force.

In the present cases, Circular dated 8-9-2009 (Annexure P-2) has been issued by the State Government on the name of the Governor and has authorised the District Collectors to transfer the Patwaris under certain circumstances. Rule 7 contained in the M.P. Land Records Manual provides that the Patwaris can be transferred from one Circle to another Circle in the same Sub-Division by the Sub-Divisional Officer and if they are to be transferred from one Sub-Division to another Sub-Division, it would be done by the District Collector. In the impugned circular, the State has authorized the District Collector to transfer the Patwaris in different Tehsils in the same District and further directions have been issued that the Patwaris who are posted in urban area may be transferred to same distant area which may not be less than 20 kms, from urban area. None of the instruction issued by the State regarding transfer of Patwaris are contrary to the provisions of Rule 7 contained in Land Records Manual. Mr. T.K. Tiwari has argued that since no provisions like that is there in Rule 7, therefore, the above instructions arc without jurisdiction. The argument appears to be misconceived. I have already said, that the State has ample power to issue such instructions which are not contrary to the law or Rules and it is not necessary that the instruction should be only on the subject or provisions of the Rules. If the provisions are already in the Rules on a particular matter, there would be no need for the State to issue executive instructions because in that situation the provisions of the Rule would prevail and probably no occasion would arise to issue instructions. Section 104 of the M.P. (C.G.) Land Revenue Code, 1959, deals with the formation of Patwari''s Circles and appointment of Patwaris thereto. Sub-section (1) of Section 104 provides that the Collector shall, from time to time, arrange the villages of the Tehsil in Patwari Circles and may, at any time, alter the limits of any existing circle and may create new Circles or abolish existing ones. Sub-section (2) further provides that the Collector shall appoint one or more Patwaris to each Patwari Circle for the maintenance and correction of land records and for such other duties as the State Government may prescribe. A conjoint reading of Section 104 of the Land Revenue Code and Rule 7 contained in Land Records Manual would show that the Collector is the Appointing Authority for the post of Patwaris and the Collector has been given power to arrange the villages and Patwari Circle and further to transfer the Patwaris from the Patwari Circle to another Patwari Circle in case their transfers are from one Sub-Division to another Sub-Division in the District, and at the same time the Sub Divisional Officer has been given power to transfer the Patwari within the Sub-Division. Since by the impugned circular, the Collector has been instructed to transfer the Patwaris and certain directions have been issued which in no manner contravene either the Rule or the Land Revenue Code or the Constitution, it cannot be said that the impugned circulars are without jurisdiction or the directions contained therein are contrary to Law.

In Punjab Water Supply & Sewerage Board Vs. Ranjodh Singh and others (supra), the appellant Board was a local authority. It used to undertake execution of schemes of various nature including laying down of sewerage lines, water supply etc. for Municipalities, Municipal Corporations and Improvement Trusts. The respondents were engaged on contract basis by the said Board. Their services were terminated. The respondents prayed for regularization of the services. The said prayer was rejected by the appellant Board in terms of the scheme framed for the regularization by the State of Punjab on 23-1-2001 and 28-3-2003. Thereafter, the respondents filed writ petitions for issuance of a writ in the nature of mandamus directing the respondents therein including the appellant Board to implement the said scheme of regularisation of their services and set aside the orders rejecting such prayer made on their behalf. The High Court allowed the writ petitions directing the appellant to reinstate the respondents in services with all consequential benefits. The appellant was also directed to regularise their services. In appeal, the Supreme Court set aside the orders passed by the High Court and held vide Para 10 of the judgment that:--

A Statutory Board is an autonomous body. Nothing has been brought to our notice to show that under the statute any direction issued by the State shall be binding on it. The State may have some control with regard to recruitment of employees of local authorities, but such control must be exercised by the State strictly in terms of the provisions of the Act. The Statutory Bodies are bound to apply the rules of recruitment laid down under Statutory Rules. They being ''States'' within the meaning of Article 12 of the Constitution of India, are bound to implement the constitutional scheme of equality. Neither the Statutory Bodies can refuse to fulfill such constitutional duty, nor the State can issue any direction contrary to or inconsistent with the constitutional principles adumbrated under Articles 14 and 16 of the Constitution of India. The purported directions of the State were otherwise bad in law in so far as thereby the Statutory Rules were sought to be superseded. A circular letter furthermore is not a statutory instrument. It was not even issued by the State in exercise of the power under Article 162 of the Constitution of India. Even a scheme issued under Article 162 of the Constitution of India, would not prevail over Statutory Rules.

The Supreme Court thus held that any direction or even scheme issued under Article 162 of the Constitution would never prevail over Statutory Rules. In the present case, none of the directions issued in the impugned circular is in regard to any provision of the rule, and the direction is only on the issue on which the rule or provisions of the Land Revenue Code are totally silent. Therefore, the above judgment of Punjab Water Supply & Sewerage Board (supra), is distinguishable and is of no help to the petitioners.

As it is already held that the State has ample power to issue executive instruction under Article 162 of the Constitution to carry out the functioning and administration of the State, and so long the instructions are not against any law or the statute and are within the limits of subject jurisdiction of the State to legislate under the Constitution, they cannot be said to be without jurisdiction or without authority of law. In the present cases, we do not find any violation of either Article 162 of the Constitution, or of any other Act or Statutory or Non-statutory Rules. Therefore, I do not find any ground to quash the impugned Circular and Communication (Annexures P-2 & P-3).

The petitions are devoid of merits. The same are liable to be dismissed and are hereby dismissed. No orders as to costs.