High Court
Legal Reasoning
13. From paragraph 116(ii) of the Executive Instructions it is clear that a Mauzadar’s successor shall ordinarily be selected from amongst the members of hi s family including relations from the female side if no qualified heir is ava ilable from the male side. There is also provision for keeping a post vacant fo r a heir who is a minor for a period not exceeding three years. It also provides that family of Mauzadar loses its hereditary claim in the event of Mauzadar bei ng dismissed for misconduct. Thus, scheme of the Executive Instructions is that a family of a Mauzadar will have hereditary claim on the post of Mauzadar. 14. Though in terms of paragaraph 117, a Mauzadar is to reside permanently in the Mauza with his family, but in exceptional cases he may be allowed to resi de outside his Mauza with the Commissioner’s permission. There is no dispute tha t the respondent no.4 is the sole heir of the earlier Mauzadar. Even after trif urcation of Mayang Mauza, the elder brother of respondent no.4 continued to disc harge his function as Mauzadar of Mayang Mauza though his residence had fallen i n Manaha Mauza. 15. Being the sole heir of the earlier Mauzadar, the respondent no.4 has a h ereditary right for consideration for appointment as Mauzadar. Therefore, I am o f the considered opinion that the Commissioner, North Assam Division was correct in quashing the selection process and appointment of the writ petitioner and in directing the Deputy Commissioner, Morigaon to start a process of selection of Mauzadar of Mayang Mauza by first disposing of the petition dated 20.06.2006 fil ed by the respondent no.4 by following the provisions of the Executive Instructi ons under Assam Land and Revenue Regulations, 1886. 16. accordingly, the same is dismissed. No costs.
Arguments
HON’BLE MR. JUSTICE A K GOSWAMI JUDGMENT AND ORDER(CAV) By this writ application under Article 226 of the Constitution of India, the petitioner prays for setting aside of the order dated 05.07.2008 passed by the Commissioner, North Assam Division, Tezpur whereby the process of selection and appointment of the petitioner as Mauzadar of Mayang Mauza were quashed. 2. The case projected in this petition, in short, is that the petitioner, w ho is an Arts graduate, was working as a teacher in a venture school. An adverti sement/notice dated 27.07.2006 was issued by the Deputy Commissioner, Morigaon D istrict inviting applications from intending candidates fulfilling the condition s as indicated therein to fill up the post of Mauzadar of Mayang Mauza, which ha d fallen vacant on the death of the incumbent Mauzadar on 29.05.2006. Pursuant t o the said advertisement/notice, the petitioner along with others applied for th e said post and the petitioner and the respondents no.4 and 5 were called for an interview to be held on 03.10.2006. In the interview, the petitioner obtained 8 5 marks while the respondents nos.4 and 5 obtained 51 and 52 marks, respectively . Thereafter, by an order dated 30.03.2007, the petitioner was appointed by the respondent no.3 as Mauzadar of Mayang Mauza on the terms and conditions mentione d in the said appointment order. The petitioner joined the post of Mauzadar on 0 7.04.2007 and had furnished sureties of landed properties of the value of Rs.8, 26,393.00 and also deposited a National Savings Certificate of Rs.10,000/-. 4. It is pleaded in the writ petition that erstwhile Mayang Mauza in the Di strict of Morigaon was trifurcated to form three new Mauzas, namely, Mayang, Man aha and Ghagua. Shri Ramesh Chandra Deka, on whose death the post of Mauzadar of Mayang Mauza had fallen vacant, was a permanent resident of village-Bhakatgaon of undivided Mayong Mauza. It is further pleaded that respondent no.4 is neithe r a resident of Mayang Mauza nor she has any immovable property in the said Mauz a. The petitioner, on the other hand, is a permanent resident of Mayang Mauza an d has immovable property in the said Mauza. He is a graduate while respondent no .4 is a Matriculate, which is apparent from the application dated 20.06.2006 fil ed by the respondent no.4 to the respondent no.3 praying for her appointment as a Mauzadar of Mayang Mauza. It is also apparent from the said application that s he is a permanent resident of Bhakatgaon under Manaha Mauza. 5. Aggrieved by the appointment of the petitioner as Mauzadar, two separate appeals were filed- one by the respondent no.4 and the other by the respondent no.5, before the respondent no.2. 6. Both the appeals were taken up for consideration by the respondent no.2 together and thereafter, the order dated 05.07.2008, as mentioned above was pass ed. 7. I have heard Mr. A.Sarma, learned counsel for the petitioner as well as Ms. P. Baruah, learned State Counsel for respondent No.1,2 and 3 and Mr. A. Mati n, learned counsel for respondent No.5.None has appeared on behalf of respondent no.4, though name of the counsel of respondent no.4 is shown in the cause list. No affidavit is filed by respondent Nos. 4 and 5. However, affidavit has been f iled by respondent nos.2 & 3. Mr. A Sarma, learned counsel for the petitioner submits that Chapter-VII 8. I of the Executive Instructions of the Assam Land and Revenue Regulation, 1886 p rovides for entire spectrum relating to the post of Mauzadar including appointme nt, qualification for appointment, duties etc. It is submitted by him that a con joint reading of the provisions, more particularly, paragraphs 115,116 and 117 o f Executive Instructions would go to show that Mauzadar must be a permanent resi dent of the Mauza. Contention is also advanced that the respondent no.4 had take n part in the interview pursuant to advertisement/notice dated 27.07.2006 and th erefore, subsequently she cannot challenge the initiation of the process of sele ction of the Mauzadar contending that the post of Mauzadar is a hereditary post and she is entitled to be appointed as such as successor of the earlier incumben The learned counsel appearing for the respondents have supported the imp t. The learned counsel submits that the Commissioner, North Assam Division, Tezp ur was wholly unjustified in quashing the process of selection as well as appoin tment of the petitioner as the Mauzadar of Mayang Mauza and in directing the res pondent no.3 to dispose of the petition filed by the respondent no.4 by followin g the provisions of Executive Instructions No. 116 (ii) and 117 of the Assam Lan d and Revenue Regulation, 1886 and other relevant laws. It is submitted by him t hat the respondent no.4 being not a permanent resident of Mayang Mauza and she n ot having any immovable property in the said Mauza, she is also not qualified to be appointed as Mauzadar of Mayang Mauza and the Commissioner, North Assam Divi sion, Tezpur committed error apparent on the face of record in not considering t he said aspect of the matter. 9. ugned order. 10. From the perusal of the materials on record, it appears that after the d eath of Ramesh Chandra Deka, the respondent no.4 had submitted an application on 20.06.2006 to the respondent no.3 stating that late Ramesh Chandra Deka was a b achelor and she is the only surviving heir of the Mauzadar, late Ramesh Chandra Deka and they were staying together as a joint family. By the said application, she prayed for her appointment as Mauzadar of Mayang Mauza. From the said applic ation it is also apparent that she is a resident of village-Bhakatgaon, Mauza-Ma naha. Perusal of the order dated 05.07.2008 goes to show that the respondent no. 4 had not submitted any application in response to the advertisement/notice date d 27.7.2006. The writ petitioner has not been able to bring any material on reco rd to show that she had responded to the said advertisement/notice by submitting any application. That the respondent no.4 appeared in an interview is not in di spute, but it appears that she had participated in the interview on a mistaken n otion that the interview was pursuant to her application dated 20.06.2006. In th at view of the matter, I find no force in the contentions of Mr. Sarma that res pondent no.4 having participated in the process of interview pursuant to the adv ertisement/notice dated 27.07.2006, she is estopped from questioning the legiti macy of the process of selection of the Mauzadar initiated by the advertisement/ notice dated 27.07.2006. Chapter-VIII of Assam Land and Revenue Regulation, 1886, provides for Ex 11. ecutive Instructions which is exhaustive in nature, covering the entire gamut in relation to Mauzadars. In order to appreciate the other contentions of Mr. Sarm a, provisions of paragraphs 115, 116 ,117 and 120 of Executive Instructions, to the extent relevant, are reproduced herein below: (cid:28)115. Mauzadars shall be appointed and dismissed by the Deputy Commissioner subj ect to the Commissioner’s approval in either case. A mauzadar may, however, be s uspended by the deputy Commissioner on his own authority. Notice of suspension shall ordinarily be served on the mauzadar by an officer of the status of (cid:28)Reven ue Officer (cid:29) who shall take over all books and papers of the mauza and any collec ted revenue at that time in the mauzadars hand. The fact of mauzadars suspension shall immediately be communicated to the raiyats of the mauza by beat of drum at the nearest hat or in any other convenient without manner and shall be report ed to the Commissioner without delay. Mauzadars shall be suspended by Deputy Com missioner only in cases in which it seems likely that their dismissal must follo w. 116. In making appointment the following principles shall be, observed as far as possible. Mauzas inhabited by such indigenous races as Cacharis and Mikirs shall b (cid:28)(i) e committed to a mauzadars who himself belongs to the indigenous population. (ii) Subject to such changes as may be required in order to give effect gradu ally to the foregoing principle, a mauzadar’s successor shall ordinarily be sele cted from amongst the members of his family-including relations on the female si de if no qualified heir is available on the made side. If an heir, other-wise su itable, is a minor, the post may be kept open for him for a period not exceeding three years, an agent being appointed, provided that the Deputy Commissioner is satisfied that the minor is doing his best to qualify himself for the appointme nt but the family of mauzadar who is dismissed for misconduct loses its heredit - - - - - - - ary claims. - - - - - - - - - - - When it is necessary to appoint as mauzadar a man who has no family clai (iii) ms to the post he shall as a rule, be selected from a family which is resident in the mauza. (iv) It is essential that a person who is selected for appointment as mauzada r should be a man who inspires confidence both by his character and by his finan cial stability. (v) Qualifications for appointment to the post of mauzadar will include a fa ir vernacular education, such as is required for the keeping of the mauzadari ac counts. It is desirable that the education should have extended to the middle ve rnacular standard. Further, other things, being equal, preference shall be given to candidates who have higher educational qualifications such as those connecte - - - - - - - - -- - - - - - - - -- d by matriculation or higher passes. 117. A mauzadar shall permanently reside in his mauza with family, but in except ional cases he may be allowed to reside outside his mauza with the Commissioner’ s permission. - - - - - - - -- 120. A mauzadar is a public servant whose primary duty is to collect land revenu e and other Government dues with the collection of which he is entrusted. (cid:29) 12. Paragraph 115 of the Executive Instructions provides that Mauzadar shall be appointed and dismissed by the Deputy Commissioner subject to the Commission er’s approval in either case. Executive Instructions 116(iii) provides that when it is necessary to appoint as Mauzadar a man who has no family claims to the po st, he shall as a rule, be selected from a family which is resident in the Mauza . Paragraph 116(iv) of the Executive Instructions provides that a person who is selected for appointment as Mauzadar should be a man who inspires confidence bot h by his character and by his financial stability. Paragraph 116(v) provides tha t qualifications for appointment to the post of Mauzadar will include a fair ver nacular education, such as is required for the keeping of the Mauzadari accounts . It is desirable that the education should have extended to the middle vernacu lar standard. Other things being equal, preference shall be given to candidates who have higher educational qualifications such as those connected by matriculat ion or higher passes. Paragraph 117 provides that a Mauzadar shall permanently reside in his mauza with family, but in exceptional cases he may be allowed to r eside outside his mauza with the Commissioner’s permission. Paragraph 120 provid es that a Mauzadar is a public servant whose primary duty is to collect land rev enue and other Government dues with the collection of which he is entrusted.
Decision
In view of the above discussion, I find no merit in this petition, and,