1. The petitioner claiming to be the nearest relative of Atmaram, the deceased kotwar of Mouza Nawargaon, challenges the order of the Sub-Divisional Officer, Gondia, confirmed by the Deputy Commissioner, Bhandara, in appeal and by the Board of Revenue in revision, appointing Lakhan, the brother-in-law of Atmaram, as kotwar in succession to Atmaram.
2. The matter is governed by Section 196(1) of the Central Provaices Land Revenue Act read with the rules framed under Section 227 of that Act. Section 196(1) reads as follows:
For each village or group of villages there shall be appointed, in accordance with rules made under Section 227, one or more kotwars orvillage-watchmen.
Rule 3 framed under Section 227, among other things, provides as follows :.On a vacancy occurring in the post of village watchman, the Revenue Officer exercising the powers of appointment shall select a successor, who shall, if possible, be the nearest relative of the previous incumbent....
Below this rule is to be found what is styled an 'Explanation' which runs thus:
For the purposes of this rule the term 'relative' shall be deemed to include relatives on both the male and female sides and connections by marriage.
3. On behalf of the petitioner it is contended in the first place that this explanation in effect enlarges Rule 3 and that, therefore, it is ultra vires. The expression 'Explanation' used by the rule making authority appears to be a misnomer. In fact, the provision contains a definition of the word 'relative'. Apart from that, this provision was made along with Rule 3 itself and is an integral part of it. There is no ambiguity about its meaning. In the circumstances, therefore, we would be stultifying the rule itself if we were to hold that this so-called Explanation is ultra vires.
4. It is then said that the petitioner being a relative by blood must be deemed to be a nearer relative of Atmaram than respondent No. 4, who is merely a relative by marriage. It is accepted before us that Atmaram and Sadu are related to one another in the manner set out in the geneological table given below :
Great Grandfather Kondu Pandu
From a perusal of this table it would be clear that the petitioner is eight degrees removed from Atmaram. The respondent No. 4, being the husband of Atmaram's sister Gulabi, is much nearer in relationship to Atmaram. He could, for the purposes of determining the nearness of the relationship, be regarded to be related in the same degree to Atmaram as his wife was.
5. Then it is said that respondent No. 4 could not be considered a 'relative' at the date of the appointment because Gulabi, his wife, had died by that time. According to the learned Counsel, relationship by marriage which oncesubsisted between respondent No. 4 and Atmaram must be regarded to have terminated on the death of Gulabi. We are unable to accept this contention. It is true that Gulabi is dead, but as long as respondent No. 4 is alive his relationship or connection by marriage cannot cease to exist merely because the other party to the marriage is no longer alive.
6. It was then contended that the words 'connections by marriage' used in the Explanation must be limited to a subsisting marriage. We do not see anything in the provision itself which would warrant such a limitation.
7. Finally, it is said that this Explanation is contrary to the general law inasmuch as it permits appointment of a person as kotwar who is not related to the deceased by blood or in other words the rule does not say that the person to be appointed as kotwar should necessarily belong to the same family as the deceased kotwar. We asked the petitioner's counsel Shri Jakatdar to show us the general law which lays down that the office of the kotwar would devolve only on a member of the kotwar's family and that the successor to the deceased kotwar had to be chosen from the members of that family. He could not do so. We are not aware of any such law. Indeed, under Section 196(1) of the C.P. Land Revenue Act it is left by the Legislature to the rule making authority to say who would be eligible for appointment as kotwar on the death of a kotwar. It does not place any limitations on the powers of the rule making authority to prescribe as to who should be eligible for appointment as kotwar.
8. In this view, we uphold the orders of the Tribunals and dismiss this petition with costs. Counsel's fee Rs. 50. Respondent No. 4's costs to be paid from the security deposited.