Point of Law: Resolution of the Gram Sabha cannot be regarded as a weighing factor, because under Sub-rule 1 of Rule 4 of the Rules for Appointment of Kotwar, the appointing authority has been empowered to reject the resolution of Gram Sabha.

ORDER :

1. This petition has been brought under Article 227 of the Constitution of India being aggrieved by the order dated 4.11.2008 passed by the Chhattisgarh Board of Revenue confirming the orders of the Courts below.

2. The brief facts of the case are these that Anand Das was the village Kotwar who was unable to perform duty because of old-age. After his resignation, the petitioner was appointed as Kotwar by the order dated 18.8.2000 on temporary basis. The applications were invited for appointment of village Kotwar. The petitioner and respondents No. 1 and 2 filed applications. The temporary appointment of the petitioner was challenged by respondent No. 1-Santosh Kumar before Sub-Divisional Officer. The SDO by order dated 14.12.2000 cancelled the temporary appointment and directed to initiate proceedings to make permanent appointment. The village Panchayat forwarded the proposal in favour of the petitioner. Respondent No. 1 canvassed his eligibility on the ground that he is the adopted son of the earlier Kotwar Anand Das and a temporary appointment was given to respondent No. 1 by order dated 20.2.2001. The petitioner then filed an appeal before SDO, which was allowed by order dated 10.5.2001 by remanding the case, with a direction to decide the case in accordance with the provision under Section 230 of the Chhattisgarh Land Revenue Code, 1959 (for short ‘Code, 1959’). Respondent No. 1 then preferred a revision before the Collector, which was dismissed. Subsequent to which, Tehsildar Palmgarh decided the case of appointment as Kotwar and recorded the finding that the petitioner is the most eligible candidate, hence, the petitioner he was appointed as permanent Kotwar by the order dated 19.3.2002.

3. Respondent No. 1 preferred an appeal before SDO against the order of Tehsildar for appointing the petitioner as permanent Kotwar, which was dismissed by the order dated 29.8.2002 (Annexure-P/3). Second appeal before the Collector, Janjgir-Champa was also dismissed by the order dated 13.3.2006 (Annexure-P/4). The challenge of respondent No. 1 before the Chhattisgarh Board of Revenue to these orders in revision petition by preferring a revision petition was allowed in which the impugned order dated 4.11.2008 (Annexure-P/1) was passed.

4. It is submitted by counsel for the petitioner that the appointment of respondent No. 1 has been made on illegal premises. The adoption as claimed by respondent No. 1 cannot be regarded as lawful adoption. There being no such proof pleaded and brought by him, the procedure for appointment of Kotwar as provided under Section 230 of the Code, 1959 has not been strictly followed, therefore, the impugned order is unsustainable. The appointment of respondent No. 1 has been made contrary to the resolution of Gram Panchayat. Relief be granted to the petitioner.

5. Learned counsel for respondent No. 1 opposes the submissions made in the petition and submits that there is no infirmity in the impugned order. There is a clear rule present in the Rules Regarding Appointment, Punishment and Removal of Kotwar and the duties, framed under Section 230 of the Code, 1959, wherein is provided that in making of appointment of Kotwar, preference may be given to the near relative of the Ex-Kotwar and the other things being equal. The claim of respondent No. 1 had been very clear that he was the adopted son of the previous Kotwar Anand Das, therefore, his appointment to the post of Kotwar is very clearly based on his entitlement and the impugned order passed is sustainable.

6. Learned State counsel opposes the submissions made and submits that the impugned order has been rightly passed, which cannot be interfered with.

7. In reply, it is submitted by counsel for the petitioner that respondent No. 1 has no relation with the Ex-Kotwar and being the adopted son of Ex-Kotwar claimed by him is not lawful, therefore, his appointment as Kotwar is bad in law.

8. Heard counsel for both the parties and perused the documents present on r