Bholaram Mahar (Wadekar) vs State of Chhattisgarh and Others

Prashant Kumar Mishra, J.—The petitioner has assailed the legality and validity of order of Annexure-P/3 dated 16th February, 2005 passed by the Board of Revenue, Chhattisgarh whereby the Board of Revenue has allowed the appeal preferred by respondent No. 4 Tularam and as a consequence, the petitioner has been removed from the post of Kotwar of village Odharbandh-Tolagaon vide order dated 21.11.2005 (Annexure-P/4). After his removal, respondent No. 4 has been appointed as Kotwar of the said village on 12.12.2005. For filling up the vacant post of Kotwar of village Odharbandh-Tolagaon a proclamation was issued by the concerned Tehsildar u/s 230 of the CG Land Revenue Code, 1959 (for short ''the Code'') and the Rules framed thereunder. The petitioner and respondent No. 4 applied for the said post and the Tehsildar vide order dated 13.3.2001 held that the petitioner deserves to be appointed. Challenging the said order, respondent No. 4 preferred an appeal, which was dismissed by the SDO, Rajnandgaon on 29.8.2001 (Annexure-P/2). These two orders have been set aside by the impugned order.

When the candidature of the petitioner and respondent No. 4 was considered, it was found that the petitioner is the son of Ex-Kotwar and is 8th class pass whereas respondent No. 4 is 4th standard pass and the concerned Gram Panchayat has recommended the petitioner''s name for appointment as Kotwar.

The matter concerning appointment of Kotwar is governed by the provisions of Section 230 of the Code and the Rules framed thereunder known as the Rules regarding Appointment, Punishment and Removal of Kotwars and their duties. Sub-Rule (2) of the Rules provides that no person shall be eligible for the post of Kotwar, who (i) is, in the opinion of the appointing authority, not of good character and antecedents; (ii) is, in the opinion of the appointing authority, unfit through infirmity of body or mind, to perform the duties of the post; (iii) is below the age of 21 years. Under Rule-4, the concerned Gram Panchayat is authorized to pass resolution proposing the name of a person for appointment as Kotwar. However, Sub-Rule (2) of Rule-4 provides for making of appointment of Kotwar. Under Sub-Rule (1) of Rule-4, preference may be given to the near relatives of the Ex-Kotwar, other things being equal.

Indisputably, the petitioner was earlier proceeded u/s 107 and 116(3) of the Cr.P.C. and Istgasa was filed against him on 29.10.1986.

The nature of proceeding drawn by the Magistrate under Sections 107 and 116(3) of the Cr.P.C. has been dealt with by the Hon''ble Supreme Court in the matter of Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, . It has been observed in paras-32 & 33 thus:-

The gist of Section 107 may now be given. It enables certain specified classes of Magistrates to make an order calling upon a person to show cause why he should not be ordered to execute a bond, with or without sureties for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. The condition of taking action is that the Magistrate is informed and he is of opinion that there is sufficient ground for proceeding that a person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. The Magistrate can proceed if the person is within his jurisdiction or the place of the apprehended breach of the peace or disturbance is within the local limits of his jurisdiction. The section goes on to empower even a Magistrate not empowered to take action, to record his reason for acting, and then to order the arrest of the person (if not already in custody or before the court) with a view to sending him before a Magistrate empowered to deal with the case, together with a copy of his reasons. The Magistrate before whom such a person is sent may in his discretion detain such person in custody pending further action by him.

The section is aimed at persons who cause a reasonable apprehension of conduct likely to a breach of the peace or disturbance of the public tranquility. This is an instance of preventive justice which the courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquility. For this purpose Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore the justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders but, as far as possible, the prevention of offences.

Thus, even if in a substantive term, a person is not convicted for any offence, a proceeding drawn under Sections 107 and 116(3) of the CrPC has a bearing on the character of a person, therefore, while assessing the suitability of a candidate under the Rules framed u/s 230 of the Code, it is an important and relevant aspect of the matter. Proceeding under Sections 107 and 116(3) CrPC is drawn when the Magistrate receives an information and believes after forming an opinion that there is substantial ground for proceeding against a person. Therefore, the said proceeding is indicative of the fact that at some point of time in the past the petitioner was involved in causing breach of peace or disturbing public tranquility. Appointment of such person as Kotwar is not in public interest, therefore, the Board of Revenue has not committed any illegality in allowing the appeal preferred by respondent No. 4.

That apart, learned State counsel has placed before this Court complete record of the proceeding drawn by the Tehsildar which contains various complaints made by the villagers against the method and style of functioning of the petitioner when he was officiating as Kotwar during the period of ailment and after death of his father. It is said that during the said period, the petitioner was involved in terrorizing the villagers; was not making payment of dues to the barbers; not keeping proper vigil and patrolling in the village and was not issuing proclamation (Munadi), of the notices received from different authorities, in the village.

In view of the material available in the record of the proceeding drawn by Tehsildar, no exception can be found to the order passed by the Board of Revenue, therefore, no interference is called for by this Court in exercise of writ jurisdiction under Article 226 /227 of the Constitution of India. In the result, the writ petition is dismissed.