£ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition N0. 4285 of 2004 WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon’ble Justice Shri SatishKK. Agnihotri Present: Mr. LS. Sahu, counsel for the petitioner. Mr. Satish Gupta, Dy. Govt. Advocate for the respondents No. 2. 3 and 4. Mr. Goutam Khetrapal, counsel for the respondent No. 5. )a. 0 R D E R (Passed on this 23'“ day of April, 2007) 1. The petitioner was appointed as Temporary Kotwar of viilage=Murkuta vide order dated 8.3.2002. During the appointment of the petitioner as temporary Kotwar, the Gram Sabha passed the resolution to appoint the respondent No.-5 as permanent Kotwar of village-Murkuta. Section 230 of the MP. Land Revenue Code. 1959 (hereinafter referred to as “the Code, 1959") provides for appointment of kotwars and their duties. Rule 4 (1) of the Rules regarding appointment, punishment and removal of Kennars and their duties (hereinafter referred to as “the Rules") provides that the Revenue Officer is competent to appoint J 35" Petitioner Padum Das, Slo Mahang Das, aged about 29 years. R/o Village-Murkuta, Tahsil-Biiha, District Biiaspur (C.G.) Versus Respondents Board of Revenue, Chhattisgath through its Member—Judge, Biiaspur Additionai Conector. Biiaspur (C.G.) Sub-Divisional Officer, Bilaspur (C.G.) Tahsiidar, Biiha, District Bilaspur (C.G.) Santan Das, S/o Pillu Das, aged 29 years, R/o Viilage—Churaghat, Tahsil- Bilha, District Biiaspur (C.G.) Kotwar after receiving a resolution duly passed by the Gram Panchayat in whose area the post of Kotwar is vacant. In the present case, the appointment of the respondent No. 5 was admittedly made, not on the basis of the resolution, duly passed by the Gram Panchayat, but on the basis of the resolution passed by the Gram Sabha, which is contrary to the provision ofthe Rules. Learned counsel appearing for the petitioner submits that the petitioner has tiled an appeal, being Case No. 19-A-56-2001-02, before the Sub-Divisional Officer, Bilaspur against the order dated 30.5.2002, passed by the Tahsildar, Bilha. District Bilaspur. The Sub-Divisional Officer vide his order dated 30.1 1 .2002 (Annexure P13) remanded back the matter on the ground that the authority below has not considered all the aspects before appointing the respondent No. 5 as permanent Kotwar. However, the Sub-Divisional Ofhcer, Bilaspurlrespondent No. 3 held that the resolution passed by the Gram Sabha is proper. Against the order dated 30.11.2002. passed by the Sub-Divisional Officer, Bilaspur. the respondent No. 5 tiled a revision, being Revision Case No. 11/A-56/02-03, before the Additional Collector, Bilaspurlrespondent No. 2, wherein the Additional Collector vide order dated\_29.9.2003 (Annexure P/4) allowed the revision on other points, but confirmed the nnding of the Sub-Divisional Offrcer with regard to appointment based on the resolution passed by the Gram Sabha. Against the order dated 29.9.2003, passed by the Additional Collector, Bilaspur. the petitioner tiled an appeal, being Revenue Appeal Case No. 22/A-56/2003-04, before the Board of Revenue, Bilaspur, wherein the Board of Revenue vide order dated 13.10.2004 (Annexure P/6), maintained theflnding of the Additional Collector to the effect that the 3 /4. C (3 resolution passed by the Gram Sabha was correct and dismissed the appeaL Being aggrieved and dissatisfied with the orders, passed by the authorities below, the petitioner has flied this petition. i have heard learned counsel appearing for the parties and gone through the pleadings and documents appended thereto. The authorities below have committed serious infirmity in arriving to the conclusion that the resolution duly passed by the Gram Sabha for appointing the respondent No. 5 as Kotwar was just and proper and appointment made on the basis of the said resolution was legal and valid. It is beneficial to quote Rule 4 of the Rules, which reads as under:- “4. 1 [(1) 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 Panchayat 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 resoiution does not fuifiii the qualification prescribed in rule 2, the authorised Revenue Officer shall reject the resolution after recording the reasons in m writing and intimate the Gram Sabha and call for a fresh proposal: Provided that immediately on occurrence of a vacancy. the appointing authority may temporarily appoint a suitable person to perform the duties of the office of Kotwar till the reguiar appointment under sub-rule (1) is made} XX XXX XXX XX 8. The State of. Madhya Pradesh by notification dated 20.11.2001 substituted the word “Gram Panchayat" by the “Gram Sabha". but the same is not applicable in case of the State of Chhattisgarh, as the State of Chhattisgarh came into existence w.e.f. 1.1 1 .2000 and a" the rules made under the MP. Land Revenue Code, 1959 prior to 1.11.2000 were adapted as it is, but the subsequent amendment made in Ruie 4 by the Sate of Madhya Pradesh is not admittedly applicable to the State of Chhattisgarh. So far as the State of Chhattisgarh is concerned, the old Rule 4. as stated above, is applicable. The provision of Rule 4 of the Rules is so clear as it does not admit of any ambiguity or confusion. The appointment on the post of Kotwar has to be made by the Revenue Officer after receiving a resolution duly passed by the Gram Panchayat, but in the present case, admittedly, the resolution was passed by the Gram Sabha, village- Murkuta. 10. Thus, this petition is allowed and the order dated 30.5.2002 (Annexure P/2), passed by the Tahsildai’, Bilha is held as void abinitio and subsequently, confirmed by the authorities below are also vitiated and are accordingly quashed. The Gram Panchayat, Village-Murkuta is at liberty’to take steps for appointment a permanent Kotwar, as early as possible, in accordance with law. 11. In the-facts and circumstances of the case, there shall be no order as to costs. Sd/— Satish K. Agnihou‘iii Judge E 3e. Bablu kl