t :,^';:'j: .-?;,;• ' j i I ilii li!jl E'! ^ <k: ds INTBE HtGH <3€ RT^^JWBIiG|AaE'U&^ wi^'vm[sii€w^o.^';:^^ PETtTIONER r^ge^iTOJ'- SKtt. Binda Bai, daughfer of JeevrakKan Gada & Wife of Teeka.mlal.residentofVilla.ge Gada.ghat, Tehsil Gariyabancih, DiStrict Raipur. vs RESPONDENT-? R / o ^ -€? u. ^ /^:^ ^yM m A'.iS'^y\ ! -! 1 1. State of Chhattisgarh, through the Secretary, v Ministry of Revehue, D.K.S. Bhawan, Raipur. 2. The AddUional y7J ., Tehsildar, j tehsil Oariyabandh, District Ra.ipu.F. ; 3. Graiii, ^ Pancha.yat, Y ©adaghaf,Through.i Ishe Sarpanch, Viltage Gadaghat Tehsil Gariyatiandli], Disfrict Raipyr. 4. - Guha.nlal, son . l -.of Gaiheeram, resident; of Vitlage Giadagh.at,, Telisul i CTariyabiaIn.djH.; Distnct. Raipur. | ;.j.; IT PEWITI0N U^E R a^a'BCa-lB ffl2fi /i^ QFltit3e CONSTn'UTION 10F IlTDIAl •: '^''•^-s-.';.-: '• •• • •' • ' •: • .'''['.-.' i ^ ''.•'• : '' ^': '•' i . • ^ ' ' '•' 1. PARTICULARS OF_THE PETI'FI@ilER: As mentioned ateove in tMS eaiuse tklG. 2. PARTIdJLARS OfSa'HiEBBEES'l'ONISENT 1:1 N' 'i i. .' As mentioned above in ;tKe^cause titile Mliia_('»l 3? HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.No. 1723 of 2005 Smt. Bihda Bai Vs. State of Chhattisgarh and others ^: W.P.No.3241 of2004 Guhanlal Vs. Boardof Revenue and others ORDER Postfor Sl.06.2005 Sd/- Sunil Kumar Sinha Judge i - ;• .. • -' <il .Fiil 'l. ZT^^'a.:l'i 3? HIGH COURT OF CHHATTISGARH AT BILASPUR W,P,Np.l723 of 2005 sf Sm.t. Btuda Bai Vs. State of Chhattisgach aud others Shri B.P. Sharma, coiufeel for tfae petitioner, Shri Pankaj Shrivastava, Panel Lawyerfor fhe State/ Respondents No.l aad 2. Shri Raja Shanaa, counsel for priyate respondent no.4. W.P.Np.3241 of 2004 Giihanlal ,Vs. , .Board ofRevenue and ottiers Sbri Raja Sharma, counsel for fhe petitioner Shri Panlcaj Shrivastava, Panel Lawyer for fbe State/ respondents No.l.aiid 2. Shri B.P.Shariaa, cbuiisel&r private respondent no.3 ORDER (•2-1.6.2005) SuayjKumar Siaha, J Siace bofh these writ petitidns arise out of a conunon order dated 11.8.2004 passed by the Boarci of Revenue, Bilaspur, Lank Court-J?aipur, fhe saa^ are beiag disposed of by tfais coauaon cttder. . (2) The factsof the case stre that one Jeev Raltbari was village Kotwar ofvill^e Gadaghat. After lus retiienieirt the post becamfi vacant. With an iateiition tp fiU up fhe post, Additional Tahsildar, Grariabaiid .registered a Reveniie Case yide N6.70/A- f wm \9 3< -2-- l!n: 56/2002-2003 and issued proclamationon 24.3.2003 callmgthe names ofuiterested candidates for the said post tffl 09-4-2003. On this proclauiatioii, applications of Binda Bai, who is the daughter ofEx-Kotwar (Petitioner mW.P.No. 1723/2005 aad respondeiit No. 3 in W.P.No.324l/2004>, aad Guliaalal (petitioner m W.P.No.3241/04 aad respondeat in W.P.No. 1723/2005) were recGived. The Tehsildar considered fheir appUcatioiis aad called certaia reports from Police Station etc., aad thereafter passed an order dated 26.|3,2003 wliereby the directtons were issued to appoiat Gubanlal as the Kotwar of fhe said viUage. Against the aforesaid order ofappointment, Smt.Biada Bai filed an appeal before tbe Sub-Divisional Of&cer, Gariaband wluch was registered as appeal Case No.54/A-56/2002-2003. The Sub- Divisional Officer heard the appeal aad byorderdated 12.12.2003 disraissed the sarue and confirmed the order passed by the Tehsildar. Being aggrieved by fhe order passed by the Sub-Divisional Officer, Binda Bai preferred a Second Appeal before fhe Board of Revenue and fhe Board of Revenue after lieariug both ih& parties passed tbe: impugned order dated 11.8.2004 bywhieUitsetasidfifhsardersi passed by fhe Courts betow aa.d directed to conduct a &esh|' eiiquiry for-ifee appouitmeiit tp the said post under'the pToytStoas! of Section 230 of the M.P(C.G) Laad RevenueCodel959i| (heremafter referred to as the Code) aiid fbr this piirpose theii matter was direGted to be remaflded to fhis Coiirt ofcortcei-nfid i| TehsiMar. It is against fhis order passed by ithe Board ofRevenue ! Isfaese wntpetitions bave been filed. I,!'1 T^ 7<T 3t -3- fe (3) Shri B.P. Sharma, leamed couiisel for the petitioner Siat. Binda Bai submits fhat Biada Bai is fhe daughter of Ex- Kotwar. Though she is inamed to a person of soiue other viUage but she is stiU residing in vUlage Gadaghat aad is fully coinpetent to perfonn the duties of Kotwar, 'fherefore, she was haviag a preferential right over fhe post and she should bave beeu appointed as ttie Kotwar of the viUage. He contended that the Board of Revenue feU iato gross error by not passiag au order aad direction for appom.tment of this petitioner to titie said post. He also subnuts fhat ftie reaaad order passed by the Board of Revenue is without jurisdiction as thesaid Court wlule exercisiug jurisdiction uuder section 44 of fhe Code Was haviag no aufhority to pass such an order because it has been laid down vide proviso to sub-section 3 of Section 49 of fhe Code that the appeUate Court shaU not reniaiid the case for disposal by any revenue officers subordiaate to itwhile exercisuig tlie appeUate jurisdiction u/s 44 offhe Code. (4) On fhe ofher haad Shri Raja Shanna, leamed counsel for the petitioaer Gulianlal iu W,P.No.3241/2004 argues that fhe orders passed by the Tehsfldar as weU as the Sub-DivisiQaal pfficer_were fuHy justi&ed and the Board ofRevenue erred ui law ia settihg aside fhQse orders aad reinittuig the matter back-to Telisildar for fresh disposal in aecordauce wifh law. (5) The subinission 6f Shri Paakaj Shrivaslava, leamed counsel for ttie State is that though the word 'remaad' ia its Hiadi version PratgwwrHt Kas toeen used t>y fhe Boapd of Reveaue but in. fact the Board has not reinauded tUis niatter Mke aa usual /; 3E -4-- ^\ I!. \ revenue case because after settmg aside the appom.tment of a selected candidate by the appellate auftiprity, which is Board here, the appointing aufhority was duty bound to make new appoiiitments or to enquire i4to the inatter afresh as per the directions issued by the Boarti, therefore, though the matter seems V • to be nejnanded by fhe express order as it appears on record, but fhe same is not a case of reuiand and it is a case of fresh consideration as an effect of setting aside of the order by fhe Board. He prays for dismissal of fhe petitions, (6) I Iiave heard learued cpuasel for the parties and have also perused fhe records ofthecase. (7) First of aB; a brief cohsideratipn is required reganliag respective claims ofthe petitioners. Snit. Binda Bai claiais herself to be daughter ofEx-Kottffar but it is an adinitted position that she has been inarned to a person ofdifferent, village which is at a •.I reasonable distance from viUage Gadaghat, She has claimed preferential right over fhe post byt abe has aot been able to substaatiate the said right on the basis oPany rule which inay support her contention beiug the daughter of Ex-KQtwar. The Board has considered this fact fhat only oa the basis ofbeing fhe successor ofJSx-Kotwar aad also on the basis pfthe tesser age than "-'"^-^. ^ • '• • .. • - -f&e^age ofrival claunant, any person canaot be held to be entitled for appoiatment to fhe post ofKotni'ar. In 'faet, fhe Board has found fbat fhe rules fi'amed ^ appointineat ^bfl&twar faave iaot been coinplied with. Theiefore, even after allowtag the appealby settuig aside fhe order of apppiatment of Guhanlal, this petitioacr Siiit.Biuda Bai has r^>t been appointed. Now if we consider tlie i,. 37 --$"• ^- ife ^ case ofpetitioner GuhaxLlaI it stiall be clear that he has not direcfly applied on the basis of Istaha/proclatiiation issued by the Tehsildar. It appears fbat he had inade sonie application to the Chief Miaister aad ttiat application was forwarded to fhe conceraed authority for its^proper disposal. On this appUcation v only his candidature was cpasidered along-with fhe caadidature of Petitioner Bindabai. After perusal of the order of the Board it reveals that fhe said application was not made witliiti fhe tioie limit fixed by fhe conipetent aufhority and was inade beyond the tinie period as per the prQcIamatipn or Jsfafta. Tbe Board has also observed that oiily on the basis of recomiiiendatiou of Gram. Panchayat by a proposal dated 07,4.2003 this petitioner has been appointed as the Kotwar of tfae village. The Board has found fhat proper enquiry has not been done ia fhe niatter of appointmenf of this petitioner as weU. > (8) After considering the records it appears that the rules framed for appoiutment of Kotwar have not been stricfly coinplied wifh by the Tehsildar. From toare perusal of section 230 of the Code along-with rules it traiispires tliat for each viUage or group of vQlstges fhere sbaU be appoiated, ia accdrdance with rules niade under s tioa 258, one or inore Kotni'ars for the purpose 6f sucb duties as may be prescnbed. Since the appoiatnlent is t<3 be made ujider the rutes so specified, tlie rules are to be &Uowed stricfly.i jtf a eoinpetent court coxnes to a conclusion fhat fhe rutes are ntit foUowed aad the requiremeat of law has not been fuISlled then) iit 1 caiuiot be said that the orders passed by the said CQUftjis i unjustified. The jurisdiction of tUe High Court ia the matfer jof •s I- ^=2- -3E -6'- interference ia fhe appoiatment of Kotwar etc., is Imiited. This court is obUged to consider whefherthe rules have been properly foUowed aad the selection has beea made ia a just and fair manner. It is not the jurisdicl^on ofthis court to substitute its own judgment about fhe inerits oftlie eandidate or give appoiiitment to fhe candidate, Please see 1986 SS.P.L^f Py.717 lAyodhya Praseid Vs Board pfjReoenuc). Siuce ia the opiruon offhis Court the Board has rightly pointed out vanous infinnities in. fhe appoiatinent of Guhaulal aad has set aside the saaie, fhis Court is not iucliaed to iiiterfere ia tlie order passed by the Board which set asides the appoin.t of fhis petitioner. ' (9) Now coiniag to the next question raised by leamed counsel for ftie petitioner Biada Bai that the order of reiiiaad is wifhoutjurisdiction. In this regard, I would Uke to refer to various provisions ofthe Ghapter V of M.y.(C.G.)Laud Revenue Code 1959. This chapter deals wifh the provisions of appeal, revision and review. Sectioa 44 deals wifh fhe appeal and appeUate authoritieS. Section 45 deals with ta~ausfer of certain pending proceedings to fhe Settlenient Comiaissioiier. Section 46 deals with the provision, whichshows fhat there shaUbe no appeal underthis code against ^grtaui orders wUcl^are nientioned ia this sectibn. Section 47 deals wifh the liinitatioa and Section 48 deals wifh the provisions regardiag copy offhe order objected to aecbmpaay the petition aad section 49 deals with tbe powei-s of fbe appellate aufhority. 6ub-| sections (1) & (2) ofSection. 49 deals wifhtiie fortnalities to tiR coinpleted before heariag of fhe appeal aiul s^ib-section (3) ul fac^ lays down fhe jurisdiction ofthe appeUate aufhority. It has beenj ~r stated fhat after bearing offhe parties the appeUate aufhority inay confirm, vaiy or reverse the ozder appealed agauist or aiay take such additioaal evidence as it may consider necessaiy for passing its order. The proviso to this sub-section to which Mr.B.P.Shanaa relied, states ttiat fhe app^Uate aufhority shall not reiiiaad fhe case for disposal by aay revenue pfficer subordinate to it. It is iu this context, fhe arguraent has been advanced that the oider of reinand passed by the Board of Revenue is not ia accordauce wifh law as fhe same is without jurisdiction because proviso to sub- section 3 ofseotion 49 prohibits aay such order ofreniaad by fhe appeUate aufhority. (10) Aflterbare perusal of fhe order, though it appears ia ftie first iastaace that the saine is the order of the reinaad, but in fact it is not aa eifective onder of reinand passed by the appeUate authority. In the opinion of fhis Court, consideration for the appointnient ia a fresh niaiuier is a natural coiisequence of settirig aside fhe oider of the suboidiaate court which does not reqzune any order ofreniaad by fhe appeUate aufhority. Even iffhe Boarel wouM not have said that the inatter is remanded to the Tehsildar for mafcmg fresli orders after foUowrag fhe rules, the matter was bound to Beplaced before the Tehsfldar because fhe same relates; ^".^s.-. -'" " '"•••'..'• • - .'.•'-.• to appointmeiit to tfae statutory post whicti is a consequence of aatural phenoineiion at the iDiStance of the post being yacaETt j luider Section 230 of fhe G.G. Laad Revenue Code, 1959. ;i Therefbre, it caiuiotbe said that in fect the Board Iias passed aii]| effective order ofremarutwIucfcwouM^beesSentiaItycoverediurideri| the proviso to sub-section 3 of section 49 of fhe Code. Evenifwe 'j ^ 4C 8 <<.: \ Itiu examiae the inatter froin a difFerent augle ia the light of proviso to sub-section 3, the result woTild be fhe saaie. Sub-section 3 postulates fhat the appeUate aufh.ority^iaay confina, vaiy or reverse the order appealed agam.st. It has also been provided fhat he niay take such additionAevideuce as it may consider necessary 1 for passuig the order. AU these provisions go to show fhat fhe order has to be finalized by fhe appeUate authorily either by cortfirming the same or varyiag the same or by reversiag the same but if the appoiatinent to any statutory post by the suborduiate authority is not confinned and is vaned or reversed for waat of soine statutoiy defect or for violation of aay rules fhen fhe statutoiy aufhority is du1y bouiid to fill up the post by reconsidering the matter ofappointment aad for fhis purpose ifaii order is passed by the appeUate aufhority, fhLeh it caanot be said fhat fhe same is an order of reinand. The result coines fhat the fresh coiisideration by fhe appointiag aufhority is the iiatural consequences of quashinent offtie order by fhe appeUate aufhorily aad a direction by the Board to coinplete fhe process of selectidn or appouitment cannot be said to be ah order cpvered under proviso to sub-section (3) ofsectioit 49 of fhe Code as thc saine is a reduii4aiit direction not required under fhe law. The entire Qrder does not caU for any iaterfereiice on fhe basis ofjurisdictional error coiiLmitted by the Board. This Gourt caa ignore the redim.daut portkin of judginent by suppordiig tihe]nght conclusioaarrivedat by the subordiaate CQUrtsor Tribus.al. However, for the sake of correction of procedural error this direc'tiQn bf iciaaad contameS 'ui fhe order ofBoard is set asiiie. 41 -3 (11) It is directed fhat fhe concemed revenue of6cer shaU issue a fresh proclamation and sbaU caU upon the applications from interested candidates for appoiatment to the post ofKotwar of village Gadaghat. The petitioners of both the petitions are not .» required to subinit fresh applications, However, if after fi-esh proclamation some other appUcations are received, ttiey shaU be taken iato consideration along-with the applications of the petitioaers of both the writ petitions and after foBoiwiiig the procedure laid down ia ffae rules, a best person shall be selected aad appoiated as the Kotwar ofthe village iu accordaace with law. It is also directed fhat this exercise shatl be coiapleted within a period of three nionfhs fiwxn fhe date of receipt/productioa of certified copy of fhis order before the concemed aufhori^. If fhe proclamatioii bas already been issued as per fhe order ofBoardof Revenue and fhe process is on, then there is no necessity of issuing a fresh proclamation and further proceediugs after issuaace offhe earlier proclamation shallbe foflowed as the parties are not in a position to iafonn the recent stage of fhe miatter. At fhis stage, it is stated fbat petitioner iiamely Guiiaalal is stiUI contmuiag on fhe said post It is directed that till fhe process of fresh appoi^taient is completed, the status quo as existmg toda)r - ' . =;!.;; ^ ^haU be maiataiaed by fhe parties. (12) Both fhe writ petitions stand disposedof. (13) Thei-esIiaUbenoorderastocosts. 1:E Sd/- SU^Kua;arSud,. Judge