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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.