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Madhya Pradesh High Court · body

2007 DIGILAW 788 (MP)

AZMER SINGH v. BOARD OF REVENUE

2007-07-25

A.K.GOHIL, SANJAY YADAV

body2007
Judgment ( 1. ) HEARD. THE appellant has filed this writ appeal under Section 2 (1) (A) of Madhya pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 challenging the order dated 17-4-2007 [2007 (3) M. P. H. T. 128], passed by the learned Writ Court and order dated 18-5-2007 passed in review petition. In the order dated 17-4-2007, learned Writ Court held that the disqualification for appointment of patel as indicated in the Rule 2 (i) and 2 (ii) is that no person shall be eligible for the post of Patel, if he- " (i) is less than 21 years; (ii) is not recorded as a Bhoomiswami in the Land Records of the village concerned:" And on that ground learned Writ Court held that no person is eligible for appointment as Patel if he is not recorded as Bhoomiswami in the land records of the village concerned and this qualification will not only be seen on the date of filing application but he should be Bhoomiswami on the date of appointment as contemplated under Rule 2 and set aside the order passed by the Additional commissioner on 28-11-2002 (Annexure P-3) and the order dated 4-3-2003 passed by the Board of Revenue (Annexure P-1) and maintained the order dated 21-1-2002 (Annexure P-4) passed by Sub-Divisional Officer and order dated 16-8-2002 passed by the Additional Collector, dated 16-8-2002 (Annexure P-3 ). ( 2. ) THE dispute in this case is regarding the appointment of Patel for village Hargangoli, District Morena. The appellant was one of the candidates and there were other candidates (respondent Nos. 5 to 7 ). After considering the applications, the SDO recommended for the appointment of respondent No. 7-Narain Lal on the post of Patel. This order was affirmed by the Collector and thereafter the Additional Commissioner set aside the appointment and directed that appellant-Ajmer Singh be appointed and this order is also affirmed by the board of Revenue against which Narain Lal filed writ petition which was registered as W. P. No. 971/03 and the learned Single Judge allowed the petition on the aforesaid ground. ( 3. ) LEARNED Counsel for the appellant raised two grounds, firstly, that azmer Singh when applied for the post of Patel was recorded as Bhoomiswami and the interpretation of Rule 2 (ii) is that qualification should be seen on the day of the filing of the application. ( 3. ) LEARNED Counsel for the appellant raised two grounds, firstly, that azmer Singh when applied for the post of Patel was recorded as Bhoomiswami and the interpretation of Rule 2 (ii) is that qualification should be seen on the day of the filing of the application. Secondly, Narain Lal, who has been approved for the appointment, was an encroached of the Government land and for that he was also punished, therefore, he is also not entitled for the appointment on the post of Patel. ( 4. ) AFTER hearing the learned Counsel for the appellant, we have examined the factual aspect of the matter. The post of Patel in Village hargangoli, District Morena fell vacant in the year 1996. The Collector granted permission on 30th August, 1996 to fill up the post, accordingly, applications were invited and in all five persons applied for the posts. Two applications; one of Narain Lal and another of Azmer Singh, were sent to Tehsildar for enquiry. The Tehsildar submitted enquiry report on 27-11-2001. Though Azmer Singh received more votes but objections were raised on the ground that under the rules he is not qualified to be appointed as Patel as Azmer Singh sold entire land and all his property on 26-6-2000 by registered sale-deed and when the inquiry report was submitted on 27-11-2001, it was found that Azmer Singh was no more a recorded Bhoomiswami of any land and was not found eligible, therefore, vide order dated 21-1- 2002, Sub Divisional Officer appointed the petitioner Narain lal as Patel of the village. ( 5. ) IN the Writ Court, the learned Single Judge was of the view that under the rule it has to been seen that whether on the day of filing of the application the qualification of having Bhoomiswami should be considered or on the day of the appointment it should be considered and after examining the rule, a finding was recorded that qualification/disqualification has to be considered on the date of appointment and not on the date of the application and since the appellant has not remained Bhoomiswami on the date of inquiry or appointment, his appointment was found to be illegal by Sub Divisional Officer and affirmed by Additional Collector. Learned Single Judge also found that it is not the intention of the legislature to appoint a landless person as Patel and has further held that the decision of the Board of Revenue in the case of Dhansram vs. Mayaram and others, reported in 1975 RN 449 is not correct law Laid down by the Board of Revenue and the opinion of the Additional Commissioner as well as Board of Revenue that eligibility has to be seen on the date of application being inconsistent with the statutory provisions cannot be upheld. ( 6. ) WE have examined the matter. It is true that under Section 222 of the M. P. Land Revenue Code, 1959 Rules have been framed regarding appointment, remuneration, duties to be performed, removal and punishment of Patels. Rule 2 of these Rules provides that:- "2. No person shall be eligible for the post of Patel, if he- (i) is less than 21 years; (ii) is not recorded as a Bhoomiswami in the Land Records of the village concerned. " ( 7. ) THEREFORE, for the purposes of the appointment of Patel, the aforesaid eligibility criteria and qualification is required to be considered on the date when the appointment is to be made. ( 8. ) IN this case, as we have scrutinised the facts of the case, it is clear from the facts that on the day when the appointment order for the post of Patel in favour of Narain Lal was issued, i. e. , on 21-1-2002, the appellant was not recorded as Bhoomiswami as he had already sold the land by registered sale-deed dated 26-6-2000. The submission of the appellant cannot be accepted that subsequently he acquired the land on 4-3-2002 by registered sale-deed. ( 9. ) THE provision of Rule 2 is very clear that no person shall be eligible for the post of Patel if he is not recorded as a Bhoomiswami in the Land Records of the village concerned. Normally, interpretation of this rule is that the qualification has to be seen on the date of appointment, therefore, it appears that the learned Single Judge has rightly interpreted the rule and has rightly held that the decision in the case of Dhansram (supra), cannot be upheld as it does not lay down the correct law. Normally, interpretation of this rule is that the qualification has to be seen on the date of appointment, therefore, it appears that the learned Single Judge has rightly interpreted the rule and has rightly held that the decision in the case of Dhansram (supra), cannot be upheld as it does not lay down the correct law. More so, the rules framed under Section 222 of the madhya Pradesh Land Revenue Code, 1959 regarding appointment, remuneration etc. , are related to the appointment of Patel. We are also of the view that if the intention of the legislature was to fix qualification for the appointment of Patel that he should be a Bhoomiswami, it clearly means that he should not be the landless person and on the date of appointment, if he was a landless person or he was not recorded as Bhoomiswami, he cannot be appointed on the post of Patel. ( 10. ) THE aforesaid rule further indicates that the person, who is appointed as Patel, has to maintain the status of the Bhoomiswami for all the times to come because this is one of the eligibility criteria for the appointment. The Court below has considered the duties of the Patel as provided under section 224 which includes collection and payment into the District Panchayat fund and other related tax and cesses payable through him and deposit of the same in the Government Treasury. Rule 18 (2) provides that the duty of Patel is to collect cesses and tax imposed by the Gram Panchayat. Therefore, it appears that one of the qualification that he should be Bhoomiswami appears to be a necessary condition, not only for appointment but also for his continuance on the post of Patel. Therefore, as per the normal rule of interpretation the incumbent has to be Bhoomiswami not only on the date of his filing application but he has to maintain the status of Bhoomiswami on the date of the appointment as well as during his whole tenure as Patel. ( 11. Therefore, as per the normal rule of interpretation the incumbent has to be Bhoomiswami not only on the date of his filing application but he has to maintain the status of Bhoomiswami on the date of the appointment as well as during his whole tenure as Patel. ( 11. ) THUS, the learned Single Judge has rightly held that a person, who was not having the land or recorded as a Bhoomiswami on the date when the appointment order was issued, cannot be appointed as Patel and has rightly set aside the orders passed by the Additional Commissioner as well as by Board of revenue and has upheld the orders passed by Sub Divisional Officer as well as additional Collector. ( 12. ) AS regards the arguments submitted by learned Counsel for the appellant that the respondent No. 7-Narain Lal, who has been appointed on the post of Patel was an encroached over the Government land. We have perused the grounds of the writ petition but the aforesaid ground was not taken in the writ petition as well as in appeal and we have also perused the impugned order passed by the learned Single Judge and from the order it appears that no such ground was raised or argued by the learned Counsel for the appellant. Therefore, when the ground was not raised before the Writ Court, it would not be proper for this Court in the Intra Court appeal to examine the question afresh. ( 13. ) THUS, we do not find any merit in this appeal and accordingly, this appeal is dismissed. Writ Appeal dismissed.