Lalaram Sinha vs State Of Chhattisgarh
2022 Latest Caselaw 7619 Chatt

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                                                                   NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR

                    Reserved for Order on :13.12.2022

                      Order Passed on : 16/12/2022

                        W.P.(S) No. 8821 of 2022
Lalaram Sinha S/o Late Premlal Sinha Aged About 60 Years R/o
Village- Post And Police Station Patan Ward No. 3 Behind Krishi Upaj
Mandi, District : Durg, Chhattisgarh
                                                           ---- Petitioner
                                Versus
1.    State Of Chhattisgarh Through Secretary, Revenue And Disaster
      Management Department, Mahanadi Bhawan, Mantralaya Atal
      Nagar Nawa Raipur District Raipur Chhattisgarh
2.    The Collector District Durg Chhattisgarh
3.    The Sub Divisional Officer (Revenue) Patan, District Durg
      Chhattisgarh
4.    The Sub Divisional Officer (Revenue) Bhilai-3, District Durg
      Chhattisgarh
5.    The Tahsildar Patan, District Durg Chhattisgarh
6.    The Tahsildar Bhilai-3, District Durg Chhattisgarh
                                                        ---- Respondents

For Petitioner : Mr. Santosh Kumar Pandey, Advocate For Respondents/State : Mr. Ravi Bhagat, Dy.G.A.

Hon'ble Shri Justice Parth Prateem Sahu C A V ORDER

1. By this petition petitioner has questioned the order of transfer

dated 16.11.2022, whereby he has been transferred from P.C.

No. 57 Charoda, Tahsil - Bhilai-3 to P.C. No. 19 Aundhi, Tahsil -

Patan, District - Durg.

2. Learned counsel for petitioner submits that transfer of petitioner

is in violation of transfer policy. According to transfer policy

transfer of district cadre employee is to be made from 16.08.2022

till 10.09.2022. Order of transfer of petitioner is issued on

16.11.2022, therefore, order of transfer of petitioner is issued in

ban period. Petitioner is posted at P.C. No.57 Charoda on

administrative ground vide order dated 18.01.2022, whereas

according to Clause 1.5 of transfer policy, employees, who are

posted at place on or before 15.08.2021 only to be considered for

their transfer. Hence, there is violation of Clause 1.5 of transfer

policy also. He also contended that according to Rule 7 of

Chhattisgarh Bhu-Abhilekh Niyamawali, transfer of Patwari is to

be made only on proposal sent by Tahsildar through

Superintendent Land Records and in case of petitioner, no

proposal is forwarded by Tahsildar and therefore, there is

violation of Rule -7 of Chhattisgarh Bhu-Abhilekh Niyamawali. He

next contended that according to instructions issued by State

Government dated 12.09.2014 power to transfer the Tahsildar,

Naib Tahsildar, Revenue Inspector and Patwari within the District

is with the Collector, whereas, the order under challenge is

issued by Sub-Divisional Officer (R) Patan, District - Durg. Order

transferring petitioner by the Sub-Divisional Officer (R) is without

authority.

3. Learned State counsel opposing the submission made by learned

counsel for petitioner would submit that in view of instructions

issued on 12.09.2014, transfer policy 2022 with respect to

revenue officials will not apply. Transfer of petitioner is within the

Sub-division Patan and petitioner is transferred from one Patwari

Halka to another Patwari Halka in same sub-division. Sub-

Divisional Officer (R) is competent to transfer Patwari as held by

the Division Bench of this Court in Writ Appeal No. 478 of 2019,

Manoj Vishwakarma Vs. State of Chhattisgarh, decided on

11.11.2019. There is no merit in this writ petition and is liable to

be dismissed.

4. I have heard learned counsel for parties and perused the

documents available in record.

5. So far as the submission of learned counsel for petitioner is that

order of transfer is issued in ban period, in violation of transfer

policy issued by the State Government dated 12.08.2022 is

concerned, the order of transfer under challenge is of Patwari,

who is a revenue officials and his appointment is made under the

provisions of the Chhattisgarh Land Revenue Code, 1959

(hereinafter referred to as 'the Code, 1959') . Section 22 defines

Sub-Divisional Officer, which reads as under :-

"22. Sub-Divisional Officers. - (1) The Collector may place one or more Assistant Collectors or Joint Collector or Deputy Collector in-charge of a sub- division of a district or in-charge of two or more sub- divisions of a district.

(2) Such Assistant Collector or Joint Collector or Deputy Collector shall be called a Sub-Divisional Officer and shall exercise such powers of a Collectors as the State Government may, by notification, direct."

6. Section 24 of the Code, 1959 talks about conferral of power by

State Government of revenue officers on officials and other

persons, which reads as under ;-

"24. Conferral by State Government of powers of Revenue Officers on Officials and other persons.

- (1) The State Government may confer on any person the powers conferred by or under this Code on any Revenue Officer.

(2) The State Government may confer on any Assistant Collector, Tahsildar or Naib-Tahsildar the powers conferred by this Code on a Revenue Officer of a higher grade."

7. State government had issued notification in exercise of powers

conferred under Section 22 of the Code, 1959 on 01.10.1959,

which reads as under :-

"In exercise of the powers conferred by sub- section (2) of section 22 of the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959), and in supersession of all previous Notifications on the subject, the State Government hereby directs that all Sub- Divisional Officers shall exercise powers of a Collector under sub- section (2) of section 57, sub- section (5) of section 59, section 87, sub- section (2) of section 104 and sub-section (2) of section 110 of the said Code, within their respective jurisdictions."

8. Section 104 of the Code, 1959 is also relevant in view of

argument raised by learned counsel for petitioner and therefore,

the same is also extracted below :-

"104. Formation of patwaris' circles and

appointment of patwaris thereto. - (1) The Collector shall from time to time arrange the villages of the tahsil in patwari circle and may, at any time, after the limits of any existing circle and may create new circles or abolish existing ones.

(2) The Collector shall appoint one or more patwaris to each patwari circle for the maintenance and correction of land records and for such other duties as the State Government may prescribed.

(3) Notwithstanding any usage or anything contained in any treaty, grant, or other instrument, no person shall have any right or claim to continue or to be appointed as a patwari on the ground of right to succeed to such office by inheritance."

9. Sub-section (2) of Section 104 deals with appointment of one or

more Patwari to each Patwari circle by Collector. The powers of

Collector is conferred upon Sub-Divisional Officer vide extracted

notification dated 01.10.1959.

10. Instruction issued by State Government on 12.09.2014 stating

that Collector, Additional Collector within his division can transfer

the revenue officers and Collector within his District can transfer

revenue officials notwithstanding anything contained in the

transfer policy. In view of aforementioned instructions/circulars

dated 12.09.2014, submission of learned counsel for petitioner

that transfer of petitioner is in violation of transfer policy issued by

State Government is not sustainable more so in light of the

provision under Section 22, Section 24 and Section 104 and

notification issued by State Government in exercise of powers

under Section 22 of the Code, 1959.

11. The issue with regard to jurisdiction of Sub-Divisional Officer in

transferring Patwari was considered by Division Bench of this

Court in Writ Appeal No. 478 of 2019. Relevant para are as

under :-

"9. From perusal of the above Notification it is apparent that the State Government while exercising powers conferred under Section 22 (2) of the Code of 1959, has authorized the Sub- Divisional Officer to exercise powers of the Collector under Section 104 (2) of the Code of 1959 along with other provisions of the Code of 1959. The issue with respect to exercise of powers of the Collector by the Sub-Divisional Officer while dismissing Patwari from service has been considered by a Full Bench of MP High Court in Kala Bai v. State of MP & ors reported in (2011) 1 MPLJ 547 (FB) and after considering the relevant provisions of the MP Land Revenue Code, 1959, which are pari materia with the Code of 1959, has held as under:-

"26. The conclusion recorded by us on the question referred to by the Single Judge are summarized as under:-

(a) That the Sub Divisional Officer has been conferred powers of the Collector to appoint a Patwari in view of the provisions of section 22 (2) of the Code and the Notification dated 1.10.1959 published in the M.P. Gazette on 9.10.1959 and as a consequence thereof he also has the power to remove a Patwari from service.

(b) That there is no conflict between the decision rendered in the case of Vishwanath Prasad (supra) and Mangilal (supra) as the factual matrix on the basis of which the two judgments were rendered was totally different and that the Division Bench in the case of Mangilal (supra) on that count has rightly sdistinguished the case of Vishwanath Prasad (supra).

(c) The Single Bench judgments in the case of Vinod Kumar Khare v. State of M.P., 2008 (4) MPLJ SN 44 : ILR (2008) M.P. 1436; Ashok 6 Kumar Khare v. State of M.P. WP No.7785/2003 dated 10.1.2005; and Phulloo Ram Kol v. State of M.P., No.8777/2003 dated 25-9-2008 are hereby overruled while the judgment in the case of Ravindra Kumar Gupta v. State of M.P., W.P. No.10863/2009 decided on 5-8-2010 [2010 (4) MPLJ 439]is hereby affirmed and approved.

The reference made to this Full Bench is answered accordingly."

10. In view of the provisions of Section 22, 24 of the Code of 1959, Notification dated 1.10.1959 issued by the State Government and also taking into consideration the verdict of the Full Bench of MP High Court, we are of the firm view that respondent No.3 is competent to pass order Annexure P-1 against the appellant."

12. The authority of Sub-Divisional Officer (R) to transfer Patwari is

already decided in W.A. No. 478 of 2019 and held that the Sub-

Divisional Officer (R) (Respondent No.3 therein) is competent to

issue order of transfer of Patwari. In view of above, submission of

counsel for petitioner that Sub-Divisional Officer (R) is having no

authority to transfer Patwari is not sustainable.

13. So far as the submission made by learned counsel for petitioner

relying upon Rule 7 under Chhattisgarh Bhu - Abhilekh

Niyamawali that as no proposal is forwarded by Tahsildar

through Superintendent of Land Records it is violation of Rule 7

is also not acceptable. Perusal of Rule 7 under Chapter-I of

Chhattisgarh Bhu-Abhilekh Niyamawali does not mention as to

under which constitutional provisions, Chhattisgarh Bhu-Abhilekh

Niyamawali has been framed. Chapter -I only talks about the

instruction. Heading of Chapter - I rads as under : -

"v/;k; ,d & iVokfj;ksa dh fu;qfDr] ;ksX;rk,a rFkk n.M laca/kh fgnk;rsa**

14. From reading the heading of Chapter-I it is apparent that it is

instructions and not having any statutory force.

15. In view of above, submission made by learned counsel for

petitioner that there is violation of Rule 7 under Chapter-I of

Chhattisgarh Bhu-Abhilekh Niyamawali is also not acceptable.

More so when it is held that Sub-Divisional Officer (R) who

issued order of transfer is competent authority.

16. In view of above, I do not find any good ground to interfere with

the impugned order of transfer. Accordingly, writ petition is

without any substance and it is dismissed accordingly. However,

petitioner would be at liberty to submit representation before the

competent authority if petitioner wants to amend his order of

transfer on any other ground.

C.C. as per rules.

Sd/-

(Parth Prateem Sahu) Judge Balram