Dipi Goswami vs The State Of Assam And 3 Ors
2022 Latest Caselaw 3374 Gua

                                                                    Page No.# 1/9

GAHC010122782022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/4172/2022

            DIPI GOSWAMI
            W/O- LATE SATYENDRA GOSWAMI, R/O- PACHANIZAR, P.O. AND P.S.
            KAMPUR, DIST. NAGAON, PIN- 782426, ASSAM


            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT
            OF REVENUE, DISPUR, GUWAHATI-6.

            2:THE COMMISSIONER
             CENTRAL ASSAM DIVISION
             NAGAON
             CAMP GUWAHATI
             OFFICE OF THE COMMISSIONER OF CENTRAL ASSAM DIVISION
             PANBAZAR
             GUWAHATI-781001.

            3:THE DEPUTY COMMISSIONER
             NAGAON
             PIN- 782002
            ASSAM

            4:HEMANTA GOSWAMI
             S/O- LATE HIRANYA GOSWAMI
             R/O- PACHANIZAR
             P.O. AND P.S. KAMPUR
             DIST. NAGAON
            ASSAM
             PIN- 782426

Advocate for the Petitioner   : MR G RAHUL
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Advocate for the Respondent : GA, ASSAM




                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

Date : 06-09-2022

1. Heard Mr. G Rahul, learned counsel for the petitioner. Also heard Mr. BD Das, learned senior counsel for the respondent No. 4, while Mr. J Handique, learned counsel appears for respondent No. 1 and Ms. S Baruah, learned counsel appears for respondent Nos. 2 and 3.

2. The petitioner is aggrieved by the letter dated 15.06.2022 issued by the Commissioner, Central Assam Division, Nagaon and addressed to the Deputy Commissioner, Nagaon, which states that the appointment of the respondent No. 4 as Mouzadar of Kampur Mouza in Nagaon district is approved and that necessary action may be taken by the appointing authority, in accordance with the Executive Instructions under the Assam Land Revenue Manual.

3. The petitioner's case is that she is the wife of the last Mouzadar of Kampur Mouza, i.e., the Late Satyendra Goswami. As per Executive Instruction No. 116 of the Assam Land and Revenue Regulations, 1886 (hereinafter referred to as the "1886 Regulations") read with the provisions of the Hindu Succession Act, 1956, the petitioner should have been appointed as Mouzadar of Kampur Mouza, as she was a Class-I heir. In support of the proposition that the petitioner should be appointed to the post of Mouzadar, the petitioner's counsel has relied upon the judgment and order dated 26.08.2013 passed by this Court in WP(C) No. 3379/2008 (Mukut Sarma vs. The State of Assam and Ors.), more particularly para 15, which is reproduced below:-

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"15. Being the sole heir of the earlier Mauzadar, the respondent no.4 has a hereditary right for consideration for appointment as Mauzadar. Therefore, I am of 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 filed by the respondent no.4 by following the provisions of the Executive Instructions under Assam Land and Revenue Regulations, 1886."

4. The petitioner's counsel submits that the father-in-law of the petitioner, i.e. Krishna Chandra Goswami was the Mouzadar of Kampur Mouza. On his death, the petitioner's husband Sri Satyendra Goswami was appointed the Mouzadar. On the death of Sri. Satyendra Goswami, the State respondents have considered and approved the appointment of the respondent No. 4, who was the nephew of Satyendra Goswami. The father of the respondent No. 4 was Hiranya Goswami, who was the brother of Satyendra Goswami.

5. The petitioner's counsel submits that the petitioner and the Late Satyendra Goswami had two children, one daughter and one son. The son being a Government servant could not be considered for the post of Mouzadar, while the daughter was married and living in her husband's house. As the petitioner (wife) was the sole remaining Class-I heir of the Late Satyendra Goswami, the petitioner should have been considered and appointed as Mouzadar, as she had all the eligibility criteria for being appointed to the post of Mouzadar in terms of Executive Instruction No. 116 of the 1886 Regulations,.

6. Mr. BD Das, learned counsel appearing for respondent No. 4 submits that the meaning of the "members of family", who can be considered for the post of Mouzadar, as per Executive Instruction No. 116 of the 1886 Regulations, cannot be given a restrictive meaning and the respondent No. 4, who is the nephew of Page No.# 4/9

the Late Satyendra Goswami can also be considered for appointment to the post of Mouzadar. In this regard, he has relied upon the Division Bench judgment of this Court in the case of Rajeswar Das vs. State of Assam and Ors. , reported in (2007) 4 GLR 898 and more particularly paras 16 and 17, which are reproduced below:-

"16. The expression 'family' is not defined in the executive instructions, and the claims are not restricted to that of the legal representatives or lineal descendants of Gaonburas. The authorities may be for good reason employed the expression 'family' and not restricted it to legal representatives or descendants of Gaonburas. It may be advisable for the authority to issue appropriate instructions as to who could be considered as the members of the family of the Gaonburas. Lack of clarity in this regard in the executive instructions may give rise to avoidable litigation. We hope and trust that the matter shall received due attention of the government for doing the needful in the matter.

17. That so far the case in hand is concerned, we are not inclined to give restricted meaning to the expression 'family' used in the executive instructions as suggested. A nephew in the given context of the rural environment cannot be said to be not a member of the family. The decisions upon which reliance has been placed by the

learned counsel for the 5th respondent, in the context of compassionate appointment into service cannot be gainfully adopted for interpreting the word 'family' occurring in the expression 'claim of the family of the Gaonburas'. Since the preferential right in the matter of appointment of the Gaonbura is not restricted to sons, daughters and lineal descendants, we cannot hold that the claim of a nephew of a Gaonbura cannot be treated as a claim of the family."

7. The counsel for the respondent No. 4 further submits that the Government of India, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training has issued a Office Memorandum (OM) dated 20.07.2016 wherein a clarification has been made with regard to the definition of "Members Page No.# 5/9

of Family" in terms of Rule 2 of the CCS (Conduct) Rules, 1964 wherein "Members of Family" in relation to a Government servant includes the wife or husband, son or daughter, parents, brother or sister or any person related to any of them by blood or marriage, whether they are dependent on the Government servant or not. He submits that in terms of the OM dated 20.07.2016, the respondent No. 4 is related to the Late Mouzadar, Satyendra Goswami, by blood. He also submits that the provisions of the Hindu Succession Act, 1956 cannot be applied to the facts of this case, as the said Act relates to inheritance of property, while the question of inheritance of property does not arise in the present case.

8. Mr. J Handique, learned counsel appearing for the respondent No. 1 submits that there is no infirmity with the consideration of the respondent No. 4 as a Mouzadar, in view of the fact that the respondent No. 4 comes within the definition of "Members of Family". Further, the educational qualification of the respondent No. 4 is Higher Secondary pass (Class-XII), while the petitioner is only a Matriculate (Class X pass).

9. Executive Instruction Nos. 116 and 162 of the 1886 Regulations are reproduced herein below:-

"116. Principal in making appointments. - In making appointments the following principles shall be observed as far as possible.

(i) Mouzas inhabited by such indigenous races as Cacharis and Mikirs shall be committed to a mauzadar who himself belongs to the indigenous population.

(ii) Subject to such changes as may be required in order to give effect gradually to the foregoing principle, a mauzadar's successor shall Page No.# 6/9

ordinarily be selected from amongst the members of his family -including relations on the female side if no qualified heir is available on the male side. If an heir, otherwise suitable, 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 appointment; but the family of a mauzadar who is dismissed for misconduct loses its hereditary claims. Note.--The same procedure shall be followed with regard to the appointment, suspension and dismissal or mauzadars appointed for the collection of grazing fees.

(iia) When it is necessary to appoint an agent (Sarbarahkar) during the minority of an heir of a deceased mauzadar as provided for in sub-clause

(ii) above, one-fourth of the commission on the total collection made by the agent (Sarbarahkar) shall be paid to the minor heir by the agent (Sarbarahkar).

(iii) When it is necessary to appoint as mauzadar a man who has no family claims 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 mauzadar should be a man who inspires confidence both by his character and by his financial stability.

(v) Qualifications for appointment to the post of mauzadar will include a fair vernacular education, such as is required for the keeping of the mauzadari accounts. It is desirable that the eduction should have extended to the middle vernacular standard. Further, other things, being equal, preference shall be given to candidates who have higher Page No.# 7/9

educational qualifications such as those connected by matriculation or higher passes.

162. Nomination and appointment of gaonburas. - Gaonburas are appointed by the Deputy Commissioner. In the case of vacancy, the Deputy Commissioner shall take into consideration (a) the claims of the family of the late gaonbura, (b) the wishes of the villagers and (c) the views of the mauzadar, and shall appoint the person whom he considers most suitable for the post.

In charges consisting entirely of nisf-khiraj or lakhiraj estate the nomination of gaonburas shall rest with the proprietors unless the nominee is plainly unfit.

The Deputy Commissioner may dismiss a gaonbura from office after recording his reasons in writing."

10. Sections 3(f), 3(g), 4, 8, 9 and 10 of the Hindu Succession Act, 1956 are reproduced herein below:-

"3(f) "heir" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;

3(g) "intestate" a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;

4. Overriding effect of Act.

(1) Save as otherwise expressly provided in this Act,

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions Page No.# 8/9

contained in this Act.

8. General rules of succession in the case of males.

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:--

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

9. Order of succession among heirs in the Schedule.

Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.

10. Distribution of property among heirs in class I of the Schedule.

The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:―

Rule 1.―The intestates widow, or if there are more widows than one, all the widows together, shall take one share.

Rule 2.―The surviving sons and daughters and the mother of the intestate shall each take one share.

Rule 3.―The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.

Rule 4.―The distribution of the share referred to in Rule 3

(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters Page No.# 9/9

get equal portions; and the branch of his pre-deceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions."

11. Mr. J Handique, learned counsel appearing for the respondent No. 1 and Ms. S Baruah, learned counsel appearing for the respondent Nos. 2 and 3 are granted 3 (three) weeks' time to file affidavit-in-opposition.

12. List the matter on 26th October, 2022.

13. Interim order passed earlier stands extended till the next date.

JUDGE

Comparing Assistant