Full Judgment Text
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PETITIONER:
RAMA
Vs.
RESPONDENT:
STATE OF MAHARASHTRA AND ORS.
DATE OF JUDGMENT: 15/10/1998
BENCH:
G.T.NANAVATI, S.P.KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
JUDGMENT
NANAVATI.J.
The appellant is questioning in this appeal the
correctness of the judgment of the Bombay High Court in Writ
Petition No. 1858 of 1982.
One Dina Bisan was the Kotwar of Village Bhandare.
He died in 1953. Respondent Sharad who was his nephew and
the only heir was appointed as a Kotwar in his place. As
Sharad was a minor at that time the appellant was appointed
as a ’Gumasta’/Deputy of Sharad. Sharad became major in
1959. He made an application on 18.4.1959. for deleting
name of the appellant as ’Gumasta Kotwar’ as that
arrangement was no longer necessary. No order was passed on
it till 1964. Therefore, he again applied to the Naib
Tehsildar to delete name of the appellant. By that time,
the appellant had also, along with other persons, applied
for re-grant of the land as rights of Kotwars came to be
abolished in 1962 by the M.P. Land Revenue Amendment Act,
1962 and he was the de facto holder on the appointed date
i.e. 31.5.1962 and as such entitled to regrant of the land.
The appellant’s
Respondent Sharad filed an appeal to the Deputy
Collector but it was dismissed. Appeal to the Commissioner,
Nagpur Division, was also dismissed. He then filed a
Revision Application to the State Government and it was
allowed. The State Government took note of the fact that
the appellant was merely a Deputy for Sharad and that the
appellant was appointed independently as a Kotwar in 1964.
As she appellant was not a Kotwar on 31.5.1962 he was held
not entitled to claim any right of re-grant under Section
150-B of the Act. Aggrieved by the order passed by the
State Government, the appellant filed a writ petition in the
Bombay High Court. The High Court after considering the
legal position and all the material on record upheld the
finding recorded by the State Government and dismissed the
writ petition.
It was contended by the learned counsel for the appellant
that the appellant was really in possession of the land and
had worked as a kotwar though as a Deputy of Sharad. He was
thus the real Kotwar and, therefore, consistently with the
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object of the Act the land was rightly re-granted to him
particularly when Sharad had not made any application for
re-granting the land to him. In our opinion, the submission
raised on behalf of the appellant is mis-conceived. The
post of kotwar was a hereditary post. It is not in dispute
that Dina was one of the recorded Kotwars of village
Bhandare. It is also not in dispute that Sharad was the
only heir of Dina and, therefore, on the death of Dina,
under Section 53 of the Act he became entitled to be
appointed as Kotwar. The State Government has in its order
clearly stated that in fact sharad was appointed as a kotwar
after the death of Dina and his name was so recorded in the
revenue records. As Sharad was a minor at that time
appellant Rama was also appointed as a ’Gumasta’ or
’substitute Kotwar’. The hereditary right of being
appointed a Kotwar was abolished in 1962. Obviously till
1962 no independent right to be appointed as Kotwar could
have been claimed by the appellant. It is also not in
dispute that an application was made by the appellant for
being appointed as a kotwar for the first time in 1964, and
an order to that effect was passed by S.D.O. Bhandare, on
13.7.1964. Therefore on 31.5.1962 which is the relevant
date, the appellant was not a Kotwar and no right of his
came to be abolished when the Act was amended and Sections
150A and 150B were inserted in it. The appellant’s
application made under Section 150B, therefore, deserved to
be rejected. We, agree with the reasons given by the High
Court and uphold the order passed by it. The appeal is
therefore, dismissed.