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2017 DIGILAW 735 (CHH)

Gambhir Das Panika v. Chairman, Board of Revenue

2017-11-22

SANJAY K.AGRAWAL

body2017
ORDER : 1. In both the writ petitions, the petitioners (Kotwars) are claiming bhumiswami rights over the service land on the strength of order passed by this Court in W.P.No.2064/2000 (Tikaram and others v. The State of M.P. and another) dated 3-5-2001 and order passed in W.P.No.2632/2000 (Chhabil Das and others v. The State of Madhya Pradesh and another) dated 30-10-2001. 2. This Court in W.P.No.2632/2000 held as under: - “According to the learned counsel for the petitioners the land in question is Mafi land and not service land. Shri Deep Kesharwani controverts this statement. Be that as it may, it seems to me that the petitioners are claiming Bhumiswami rights over the lands which were granted to their predecessors prior to 1950 and the said lands were duly recorded in documents Annexure-P/12. On perusal of the relevant documents placed before me and after hearing learned counsel of both sides, I am of the view that it will be just and fair to allow the claim of the writ petitioners. In the result, this petition is disposed of with the direction that the competent authority shall grant Bhumiswami rights in respect of the lands recorded in Jamabandi vide Annexure-P/12 in favour of the writ petitioners. This order shall be carried out within one month from the date of receipt of this order.” 3. Likewise, in W.P.No.2064/2000, this Court held as under: - “It appears to me that since the petitioners were given plots of lands in 1950 and since then they have been serving as kotwars for all these years, even on humanitarian grounds this prayer should be allowed. It would also be equitable that writ petitioners are granted Bhoomiswami rights; as the same has been done in respect of their counterparts in districts of Raigarh and Bilaspur. In the result, this petition is disposed of with a direction that competent authority shall grant Bhoomiswami rights in respect of the writ petitioners. This order shall be carried-out within one month from the date of receipt of this order.” 4. In order to consider the plea raised by the petitioners, it would be appropriate to notice Section 57 of the Chhattisgarh Land Revenue Code, 1959 (for short, 'the Code') which provides for State ownership in all lands. Section 183 of the Code provides for service land. In order to consider the plea raised by the petitioners, it would be appropriate to notice Section 57 of the Chhattisgarh Land Revenue Code, 1959 (for short, 'the Code') which provides for State ownership in all lands. Section 183 of the Code provides for service land. Appointment of Kotwars and their duties are regulated by Section 230 of the Code and Section 231 provides for remuneration of Kotwars. Sub-section (2) of Section 183 of the Code itself provides that Kotwar while holding service land is restrained from transferring the service land by sale, gift, mortgage, sub-lease or otherwise except by a sub-lease for a period not exceeding one year, and any transfer made contrary to the above stated provision shall be transparently void. Same is the proposition laid down by the High Court of Madhya Pradesh in the matter of Pahup Singh v. Haridas, 1977 RN 467. 5. The principle of law laid down in Pahup Singh (supra) was followed by this Court in the matter of Kamini Kumar v. Bhaudas and another, AIR 2017 (NOC) 206 (Chh). 6. Thus, a Kotwar, who is alloted service land by virtue of holding the post of Kotwar, is not entitled to even transfer the land by sale, gift, mortgage, sub-lease etc. etc., and any transfer so made shall be transparently void. Thus, he cannot be conferred with bhumiswami right of service land and grant of bhumiswami rights by the coordinate Bench of this Court in Chhabil Das (supra) and Tikaram (supra) is in teeth of the provisions contained in Section 183(2) of the Code and thus, the orders passed in Chhabil Das (supra) and Tikaram (supra) require reconsideration on the following stated question: - “Whether a Kotwar (village servant) holding service land under Section 183(1) of the Chhattisgarh Land Revenue Code, 1959 can be granted bhumiswami right over such service land in view of the provision contained in Section 183(2) of the Code as held in Chhabil Das (supra) and Tikaram (supra)?” 7. Therefore, in exercise of power conferred under Rule 33 of the High Court of Chhattisgarh Rules, 2007, the matter is referred to Hon'ble the Chief Justice to consider and place the matter before a larger Bench for reconsideration of the decision rendered by this Court in Chhabil Das (supra) and Tikaram (supra).