.GH GQURT QF JUDICATURE GHHATT!$RH: B!LASP {Bixiisi r: Eench) GQRAM: Hon’ble Shri A.K.Patnaik, Q-J & Hon’ble Shri Dhirendra Mishra, J. Wyit Petitien No. 53? 0f 1995. Vijay Das Manikpuré 8: cthers Versus State of Madhya Pradesh (Now Chhattisgarh‘) Present: Mr. A.K. Pandey, leamed sounse! for the Petiiigners. Mr. $anjay S Agrawal, !eamed GovtrAdvocate fer the $tatel respondent. O R D E R (Passéd cm 18m Augusi 2W5) The fo!!owing oral order of the Court was passed by A.K.Patnaik, OJ:- Petitioner No.1 daims to be the son of Chaturdas, Kotwar of Mouza Bardi, Tehsi! Kawardha and petitioner Ne.2 daims te be the sen of ~5ukhdas, Kotwer of Mouza Chhata, Tehsi! Kawardha. Petitiener No.3 is Reinandgaon and Durg Districts Kotwari $engh. The case of the petitioners is that Kotwers were rendering services to theviiiage ’ community and for their services they had been aiiotted some tend by the ex—proprietors. With effect from 31-03—1951. the interest of the ex- preprietors in the land vested in the $tate by the provisions of MP. Abolition of Proprietary Rights (Estates, Mehais, Aiienated Lends) Act, 1.950. Under Sub-section (3) of Section 45 of the said Act any person \ hoiding iand other than sir iand from the proprietor on favourable terms for \ H GA UR service rendered by him was dedared to be an occupancy tenant of the $tate from the date of vesting of the said land. According!y, the Kotwars, in whose favour the ex-hroprietors cf the tend, had attetted the tand on faveurable terms .nr service .endered by them became eccupancy tenants of the State under Sub-section (3) of Section 45 of the MP. Abolition of ‘ P.oprietary Rights (Estates, Mahais, Atienated Lands) Act, 1950. At! ccLpancy tenants were entitied to Bhumiswami rights under Section 190 0 of the MP. Land Revenue Code. Notwithstanding the said position of iaw, Bhumiswarni rights have not been conferred on fathers of petitioners 1and 2 and thereafter on petitioners 1. and 2 and simitariy other Kotwars of the districts Rainandgaon and Durg and their sons. The petitioners have tiied this writ petition with a prayer to direct the respondent to give uniform Bhumiswami rights to ai! the Kotwars of the viiiage oter land hetd by them or their ancestors. 2). Mr. AK. Pandey, learned counse! for the petitioner submitted that in the case of Gauriehanker choubev Vs. Baktha i1 985 RN-228‘" the iearned Singie Judgeof the Madhya Pradesh High Court has heid that a viiiage Kotvvar being not a personai servant of the proprietor and services having been rendered by him to the viiiage community, Sub- section (3) of $ection 45 of the MP. Aboiition of Proprietary Rights (Estates, Mahats, Attenated Lands) Act, 1950 was appiicabie and such vitiage Kotwars are occupancy tenants of the State from the date of vesting by virtue of the statutory provisions. Mr. Pandey further submitted that the fathers of petitioners 1 and 2 and thereafter petitioners 1 and 2 have been in possession of the iand which was given to their fathers by the ex—proprietors of the iand for the service'rendered by their fathers as K-...Iars to the viiiage community. He submitted that this is, therefore, a fit case in which the High Court shouki diyect the respondents te grant Bhumiswami rights to petitioners 1 and 2 and other Kotwars of Rajnandgaon and Burg districts and their sons. 3}. Mr. Sanjay S Agrawal, iearrred Gevernment Advoca.e for the State of Chhaitiegarh, on the ether hand, reiying on the return .ried en behalf of the respondent/state that Section 230 of the MP. Land Revenue Code 1959 makes it ciear that oniy pereens feund suitabie are appointed as Kotwars. He submitted that petitioners 1 and 2, therefore, cannot tegatiy inherit an t rights ef Ketwars on the ground that their fathers were Ketwars. He aise submitted that the petitioners sheuid have approached the Court soon after the decision of the MP. High Ceurt, reported in 1985 RN 228, but they have approached this Court more than 1.0 tear: after the said decision in that case. 4}. Qn a reading of the provisions of Sub-section (3) of $ection 45 of the MP. Abotition of Proprietary Rights (Esmtes, Mahais, Attenated Lands) Act, 1950, we find that any person hoiding [and other than sir iand from the proprietor on favourahie terms for service rendered by him has been deciared to he an occupancy tenant of the $tate from the date of vesting and the Dy. Commissioner is required to fix the rent to be paid by such occupancy tenant to the State. it further appears that from a reading of Section 1.90 of MP. Land Revenue Code 1.959 which after its adoption v the Goternrnent of Chhattisgarh is titted as QG. Land Revenue Code, 1959 that the rights of a Bhumiswami wit! accrue to the occupancy tenant in respec. of the iand heid by him with effect from the dates specined therein. it aiso appears from the decision of the MP. High Court in the case of Caurishankar Choubey .ls. Baktha ($upra) that a Kotwar in continuous possession of the iand given to him for service rendered to the vi!!age communéty by the proprietor of the !and has bean he!d t9 be an occupancy tenant 9f the State from the date of vesting. !t a!so appears that the aforesaid decision of the MP. High Ceurt in the case of Gaurishanker Choubey Vs. Baktha(-Supra) has bee. rendeied on the basis 0f the iaw iaici dawn in the case of Jiwaniai V5. Board of Revenue “361 MPL-J- Ski-:18; But the petitioners can be recorded as Bhumiswami in respect cf the tend in question oniy if their fathers were viiiage Kotware in occupation of the lends given to them by the ex— proprietors for service to the viiiage community at the time of vesting. As to whether or not a person is a Kotwar or is’e son of a Kotwar and was in occupation of iand given to him by the ex-proprietor of tend for service rendered to the village community at the time of vesting is a factuai question to be decided by the competentauthority and cannot be decided by us in the present writ petition under Articie 226 of the Constitution. 5)_ For the aforesaid reasons, we dispose of the writ petition with a direction that the petitioners may tiieappropriate appiicetions before the Tehsiidar in whose jurisdiction the land ciaimed by the petitioners feiis and the Tehsiidar on receipt of such application wiii make an enquiry into the aforesaid factuai aspect and pass orders on the application of the pet'tioners in acc dance with iaw as discussed above. Sdl- l l‘, , Sm. aA ““5“” r Chief Justice I / ' .V x) Jvdge \ .\