Nafr High Court
Case Details
ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.08.22 10:44:21 +0530 1 2025:CGHC:42329-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 258 of 2019 Ferudas S/o Sukhdas Manikpuri Aged About 57 Years R/o Village Karesara, Tehsil And District Mungeli Chhattisgarh. versus ... Appellant 1 – State of Chhattisgarh Through The Secretary, Revenue Department Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur Chhattisgarh. 2 - The Collector, District Mungeli Chhattisgarh. 3 - The Sub Divisional Officer Revenue, Mungeli, District Mungeli Chhattisgarh. 4 - The Tahsildar Mungeli, District Mungeli Chhattisgarh. 5 - Jugraj Satnami S/o Shriram Satnami, Kotewar, Village Karesara, R/o Village Chhuiha, Tahsil And District Mungeli Chhattisgarh. 6 - Laxmikant Banjare S/o Kashiram Banjare, R/o Village Karesara, Tahsil And District Mungeli Chhattisgarh. 7 - Umed Kumar Yadav S/o Shri Santuram Yadav, R/o Village Karesara, Tahsil And District Mungeli Chhattisgarh. 8 - Lala Ram Yadav S/o Shri Maruram Yadav, R/o Village Karesara, Tahsil And District Mungeli Chhattisgarh. 9 - Parasram Kurre S/o Luludas Kurre, R/o Village Karesara, Tahsil And District Mungeli Chhattisgarh. 10 - Dukhiram R/o Village Karesara, Tahsil And District Mungeli Chhattisgarh. 2 11 - Inder Bareth S/o Manrakhan Bareth, R/o Village Karesara, Tehsil And District Mungeli Chhattisgarh. 12 - Radha Bareth D/o Baliram Bareth, R/o Village Karesara, Tahsil And District Mungeli Chhattisgarh. 13 - Shnivkumar Bareth R/o Village Kresara, Tahsil And District Mungeli Chhattisgarh. 14 - Ramdayal Sahu R/o Village Karesara, Tahsil And District Mungeli Chhattisgarh. (Cause-title taken from Case Information System) ... Respondents For Appellant
Legal Reasoning
: Mr. Achyut Tiwari, Advocate For Respondent-State : Mr. Shaleen Singh Baghel, Deputy Government Advocate For Respondent No.5 : Mr. Abhyuday Singh, Advocate Hon'ble Shri Hon'ble Ramesh Sinha, Shri Bibhu Datta Guru Chief Justice , Judge Per Ramesh Sinha Judgment , Chief Justice on Board 21.08.2025 1. Heard Mr. Achyut Tiwari, learned counsel for the appellant. Also heard Mr. Shaleen Singh Baghel, learned Deputy Government Advocate, appearing for the State as well as Mr. Abhyuday Singh, learned counsel appearing for respondent No.5. 2. By way of this writ appeal, appellant has prayed for following relief(s):- “It is therefore, prayed that this Hon'ble court may kindly be pleased allow the instant appeal and to set aside the impugned order dated 21.01.2019 passed by the Ld. Single 3 Judge in W.P.(S) No. 289/2017 (Annexure A- 1) by holding that the petitioner is entitled to get appointment as "Kotwar" of the said village, in the interest of justice.” 3. The present intra Court appeal has been filed against the order dated 21.01.2019 passed by the learned Single Judge in Writ Petition (S) No.289/2017 (Ferudas v. State of Chhattisgarh and others), whereby the writ petition filed by the appellant/writ petitioner has been dismissed. 4. The brief facts of the case projected before the learned Single Judge were that respondent No.5 was appointed as Kotwar for Village Karesara, Tahsil and District Mungeli by order dated 28.06.2011. Aggrieved, the appellant/writ petitioner, who was also an applicant for the said post, filed an objection before the Sub- Divisional Magistrate, which came to be rejected on 27.03.2012. Thereafter, he preferred an appeal before the Divisional Commissioner, Bilaspur, who vide order dated 26.08.2015 allowed the appeal, set aside the appointment of respondent No.5, and directed for fresh proceedings. Later, respondent No.5 challenged the Commissioner’s order before the Board of Revenue by way of revision. The Board of Revenue, by the order dated 04.10.2016, allowed the revision, reversed the Commissioner’s order, upheld the appointment of respondent No.5, and observed that the appellant/writ petitioner was rightly not considered owing to his earlier prosecution under Sections 107 and 116(3) of Cr.P.C. 4 5. Being aggrieved with the inaction on the part of the authorities, the appellant/writ petitioner has filed a writ petition bearing Writ Petition (S) No.289/2017 before the learned Single Judge, which was dismissed vide order dated 21.01.2019 6. Challenging the aforesaid order dated 21.01.2019 passed by the learned Single Judge in writ petition, the instant appeal has been filed by the appellant/writ petitioner. 7. Learned counsel for the appellant/writ petitioner submits that the impugned order dated 21.01.2019 passed by the learned Single Judge suffers from serious legal infirmities and has failed to appreciate the true nature of the proceedings earlier initiated against the appellant. It is contended that the reliance placed upon the fact that the appellant had earlier been proceeded against under Sections 107 and 116(3) Cr.P.C. is wholly misplaced. The said provisions are only preventive in nature, enacted to prevent breach of peace or disturbance of public tranquility. They do not constitute any offence nor do they result in any “prosecution” in the eyes of law. Prosecution can only be said to occur when a person is charged for commission of an offence under the Indian Penal Code or any penal statute. Therefore, the finding that such proceedings have a bearing on the appellant’s character is erroneous, perverse and contrary to settled principles of criminal jurisprudence. Learned counsel further submits that the judgment relied upon by the learned Single Judge, namely 5 Babudas v. State of Chhattisgarh & Ors. (WPS No. 3564/2010, order dated 14.12.2018), has no application to the present case. In that matter, the candidate was prosecuted for grave and heinous offences under Sections 342 and 376 IPC. In contrast, in the present case, the appellant has never been prosecuted for any offence, but only proceeded against under preventive provisions of Cr.P.C., which cannot be equated with criminal antecedents. It is a settled principle that every person is presumed innocent unless proved guilty for commission of an offence. Preventive action under Sections 107 and 116(3) Cr.P.C. only contemplates likelihood of breach of peace and not commission of an offence. Hence, the same cannot be treated as criminal antecedents disentitling the appellant from appointment as Kotwar. Apart from this, learned counsel also submits that under Rule 2 of the Rules framed under Section 230 of the Chhattisgarh Land Revenue Code, 1959, near relatives of an ex- Kotwar are entitled to preferential treatment for appointment on the post of Kotwar. The appellant, being the son of the ex-Kotwar, was legally entitled to such preferential consideration, which has been completely ignored by the authorities below while upholding the appointment of respondent No.5. Therefore, it is submitted that the impugned order dated 21.01.2019 deserves to be set aside and the appointment of respondent No.5 be quashed, while the appellant be given due consideration in accordance with law and the applicable rules. 8. On the other hand, learned State counsel submits that the 6 appointment of respondent No.5 as Kotwar was made after due consideration of eligibility and suitability, and the appellant was rightly excluded in view of his antecedents under Sections 107 and 116(3) Cr.P.C. It is further submitted that the preference contemplated under Rule 2 of the Rules framed under Section 230 of the Chhattisgarh Land Revenue Code does not confer an indefeasible right of appointment, and the authority was justified in preferring respondent No.5. The order of the Board of Revenue is reasoned and does not warrant interference. 9. Learned counsel for respondent No.5 opposes the submissions made by learned counsel for the appellant and submits that the appointment of respondent No.5 as Kotwar was made strictly in accordance with law. The appellant was rightly not considered, as he had been subjected to proceedings under Sections 107 and 116(3) Cr.P.C., which, though preventive, indicate undesirable conduct and unsuitability for a sensitive post like Kotwar. It is further submitted that the “preferential treatment” under Rule 2 of the Rules framed under Section 230 of the CGLRC does not confer an absolute right and is subject to fitness and suitability. Since the appellant’s antecedents were not appropriate, the competent authority rightly appointed respondent No.5. The Board of Revenue’s order is well reasoned, and the learned Single
Decision
Judge has rightly dismissed the writ petition. 7 10. We have heard learned counsel for the parties and perused the impugned order as well as materials available on record. 11. After appreciating the submissions of learned counsel for the parties as also the materials on record, the learned Single Judge has passed the impugned order in following terms:- “8. Having heard the contentions put forth on either side and on perusal of record, the fact that the proceedings was drawn against he petitioner under the provision of Sections 107, 116 (3) of Cr.P.C. is not in dispute by the petitioner. There is also no dispute to the fact that, Istgasa was also filed against him for the said offence. 9. Given the aforesaid admitted factual position what now remains to be considered is that, in the given factual matrix, could the petitioner have claimed for appointment as 'Kotwar' of village Karesara based upon the preferential treatment which the petitioner would be entitled for under the Rules pertaining to the appointment of 'Kotwar' being a relative/son of an 'Ex-Kotwar'. 10. This Court on an earlier occasion had the occasion of dealing with the similar issue i.e. WP No. 176/2006 d/on 22/10/2013 [Bholaram Mahar (Wadekar) v. State of Chhattisgarh & Ors.] . It would be relevant at this juncture to reproduce the relevant provision of the said judgment for proper appreciation of the issue involved in the instant case as under:- 8 “5. Indisputably, the petitioner was earlier proceeded under Section 107 and 116 (3) of the Cr.P.C. and Istgasa was filed against him on 29.10.1986. 6. 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 Limary v. Sub-Divisional Magistrate, Monghyr and others [1970 3 SCC 746]. It has been observed in paras-32 & 33 thus:- “32. 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 of disturbance is within the local limits of his 9 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. 33. 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.” 10 7. Thus, even if in a substantive term, a person is not convicted for any officen a proceeding drawn under Sections 170 and 116 (3) of the Cr.P.C. has a beaing on the character of a person, therefore, while assessing the suitability of a candidate under the Rules framed under Section 230 of the Code, it is an important and relevant aspect of the matter. Proceeding under Sections 107 and 116 (3) Cr.P.C. 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. ” 11. Recently again, this Court had the occasion of dealing with another issue under Section 230 of the Chhattisgarh Land Revenue Code in WPS No. 3564/2010 d/on 14/12/2018 [Babudas v. State of Chhattisgarh & Ors.] . The said proceedings also was pertaining to the appointment of 'Kotwar'. The petitioner therein also was prosecuted in a criminal case though the offence there was under Sections 342 & 376 of IPC. For ready 11 reference, paragraphs 14 to 18 are reproduced herein under:- 14.“ If we read the aforementioned Rule provision it would clearly reflect that, the power of appointment has been vested upon with the appointing authority i.e. the Tahsildar and while making so the appointing authority has to affirm the opinion in respect of the candidates who have applied for the said post and thereafter pass an appropriate order. 15. Similarly, clause 2 of Rule 4 further empowers the appointing authority to give preference to a person who is the near relative of Ex-Kotwar when other things being equal. 16. The plain reading of the order of the Collector would reveal that, many persons had applied and all were eligible. It is at this juncture when the Tahsildar had to form an opinion while issuing an appointment order. It is at this juncture that the Tahsildar has been empowered to take his own opinion in respect of different candidates who have put up their candidature and in the process if the Tahsildar has given a preference to the petitioner accepting him to be the near relative of Ex-Kotwar, unless otherwise proved which the respondent No.6 apparently has not been able to establish, the finding of the Tahsildar cannot be held to be bad. 12 17. Secondly, we cannot loose site of that the respondent No.6 at one point of time was prosecuted for a criminal case for the offence punishable under Section 342 & 376 of IPC which again gives an indication of his criminal antecedent though he may have been acquitted of the said case at a later stage. 18. What is important is whether the opinion formed by the Tahsildar in the aforesaid factual matrix of the case can be held to be bad in law in any manner? There is no specific guidelines or parameters which have been given or laid down to assess the suitability. Thus, it is the general assessment which has to be made by the Tahsildar and in the course of general assessment with the available materials, if the Tahsildar forms an opinion, the said opinion cannot be said to be in any manner perverse.” 12. In view of the aforesaid legal position as it stand and if we take the facts of the present case into consideration, there is no dispute on part of the petitioner in respect of his being prosecuted under Sections 107, 116 (3) of Cr.P.C. It is also not in dispute that, on due consideration, the respondent No.5 was at the first instance appointed on 28/06/2011. The order of appointment has also been affirmed by the Sub Divisional Magistrate vide order dated 27/03/201. 13 13. In the light of the aforesaid factual matrix, it could not be said that the finding of the Board of Revenue is in any manner perverse to the evidence which have come on record or is contrary to the Act or Rules governing the field. 14. So far as the Rules governing the field what is relevant to be taken note of is that, the Tahsildar while considering the case for appointment of 'Kotwar' has to form an opinion and that while forming an opinion, the authority has to take into consideration the good character and the past antecedent of the candidate. While forming an opinion, the authorities would also have to take into consideration the report which has brought before the Tahsildar in respect of each of the candidate. 15. In the present facts, the report which was placed before the Tahsildar show that, the petitioner in the past had been prosecuted under the provision of Sections 107, 116 (3) of Cr.P.C. This proceedings itself is sufficient to reach to the conclusion so far as the petitioner's conduct and character is considered. 16. As has been discussed earlier, this Court in the case of Bholaram Mahar (Wadekar) (Supra) has already held that, the proceedings drawn under Sections 107, 116 (3) of Cr.P.C. has a bearing on the character of a person. In the said judgment, this Court 14 had also held that, the fact that at some point of time in the past, the petitioner was involved in breach of peace or disturbing the public tranquility, under such circumstances the appointment of the petitioner on the post of 'Kotwar' would not had been in the public interest. 17. In view of the same, this Court does not find any strong grounds made out by the counsel for the petitioner calling for an interference with the order of Board of Revenue Annexure-P/1 dated 04/10/2016. 18. The Writ Petition thus being devoid of merits deserve to be and is accordingly rejected.” 12. In view of the entire conspectus of facts and circumstances and the law governing the field, we are of the considered opinion that the appellant has failed to make out any ground for interference. The admitted factual position is that proceedings under Sections 107 and 116(3) of the Cr.P.C. were indeed drawn against the appellant. Even if such proceedings are preventive in nature, they are nonetheless founded on the satisfaction of a competent Magistrate that the conduct of the person concerned was such as to cause apprehension of breach of peace or disturbance of public tranquility. The requirement for appointment as Kotwar is not only eligibility but also suitability, integrity and unimpeachable antecedents, as the Kotwar acts as a vital link between the administration and the villagers. A person whose past conduct has 15 been subjected to preventive proceedings cannot be said to satisfy this standard of suitability. 13. The reliance placed by learned counsel for the appellant on the principle of “preferential treatment” under Rule 2 of the Rules framed under Section 230 of the Chhattisgarh Land Revenue Code, 1959, also does not advance his case. The said provision does not confer an absolute or indefeasible right of appointment. It only contemplates preference amongst equally eligible and suitable candidates. Such preference is always subject to the overall satisfaction of the competent authority regarding the character and antecedents of the candidate concerned. In the present case, the appointing authority, having considered the report on record, found respondent No.5 more suitable and accordingly appointed him. 14. We also find no error in the reasoning adopted by the Board of Revenue in affirming the appointment of respondent No.5 and rejecting the claim of the appellant. The learned Single Judge has rightly upheld the order of the Board of Revenue, after taking note of the judgments of this Court in Bholaram Mahar (supra) Babudas (supra), wherein it has been held that antecedents, even in the form of preventive proceedings, have a bearing on the assessment of suitability for the post of Kotwar. 15. Thus, on a holistic appreciation of the factual and legal position, we are unable to persuade ourselves to take a view different from 16 that taken by the learned Single Judge. We find no illegality, infirmity or perversity in the impugned order dated 21.01.2019 warranting interference by this Court in appellate jurisdiction. 16. Accordingly, the writ appeal, being devoid of merit, is dismissed. There shall be no order as to costs. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Chief Justice Judge Anu