WP(C) 1062/2007 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA 1. Heard Mr. D.C. Borah, learned counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. I have also heard Mr. M.H. Choudhury, learned counsel for the respondent No. 5. 2. The petitioner who is the wife of Late Amarendra Nath Choudhury, is aggr ieved by the order dated 06.01.07 passed by the Commissioner of Lower Assam Divi sion, Guwahati rejecting her appeal which was filed against the order passed by the Deputy Commissioner, Kamrup in respect of appointment of Mauzadar of the par ticular Mouza (Karara Mauza). 3. The case has a chequred history. Admittedly, it was the husband of the p etitioner who was the Mauzadar of the said Mauza, but was dismissed. Thereafter it was the respondent No. 5 who was appointed as Mauzadar on purely temporary ba sis subject to provision of Assam Land Revenue Regulations, 1886 and the instru ctions issued by the Govt. from time to time. In the order it was stipulated tha t the appointment being temporary could be terminated without any notice. 4. It appears that the husband of the petitioner being aggrieved by his dis missal as Mauzadar had preferred a review petition and the same was entertained and allowed by Annexure-3 order dated 12.11.96. By the said order passed by the Govt. of Assam in the Revenue Department direction was issued to the Deputy Comm issioner for reinstatement of the husband of the petitioner as Mauzadar. 5. Being aggrieved by the said order, the respondent No. 5 had approached t his Court by filing a writ petition registered and numbered as CR No. 5581/96. It appears that the respondent No. 5 had also obtained stay order by virtue of w hich he continued to be the Mauzadar of the Mauza. The writ petition was dismiss ed by judgment and order dated 24.06.99 noticing the term of appointment of the respondent No. 5. In the said judgment, it was observed that the appointment of the respondent No. 5 being always subject to interference with the dismissal of the petitioner’s husband, no right accrued to the respondent No. 5 to continue i rrespective of interference with the dismissal of the petitioner’s husband. 6. Against the said judgment, the respondent No. 5 preferred a writ appeal being WA No. 215/99 and the same was dismissed by judgment and order dated 19.01 .2001. In the meantime, the respondent No. 5 was also placed under suspension by order dated 08.09.2000 on the ground of certain irregularities committed by him . The order was passed by the Deputy Commissioner. 7. After dismissal of the writ appeal, the respondent No. 5 preferred Civi l Appeal No. 6195/2001 before the Apex Court and the appeal was disposed of by o rder dated 03.09.2001. For a ready reference the order is quoted below: One of the contentions raised in the present case pertains to the validity of t he order dated 23rd February, 2001 where by the appellant who had been placed un der suspension in the year 2000 was dismissed from service. It is an admitted case that no inquiry was held against the appellant ev en though in the order placing him under suspension the reasons for doing so wer e mentioned. Presumably, the appellant was placed under suspension in contemplat ion of disciplinary action which must have been proposed against him. but no inq uiry was held and the appellant was dismissed from service in the year 2001, eve n though he had been appointed over the years earlier, that is to say, in the ye ar 1982. Without going into the other aspects of the case, namely, the validity o f the order of the State Government reinstating respondent No. , the allegati on being that such an order was arbitrary, only on the ground that principles of natural justice have been violated, we allow this appeal and set aside the orde r of dismissal of the appellant. All the other questions and issues in this case are left open. 8. It will be pertinent to mention here that before the aforesaid order dat ed 03.09.2001 passed by the Apex Court, the service of the respondent No. 5 as M auzadar was terminated by order dated 23.02.2001 passed by the Deputy Commission er, Kamrup. Consequently, the husband of the petitioner was reinstated as Mauzad ar of the said Mauza. 9. Pursuant to the aforesaid order passed by the Apex Court on 03.09.2001, the Deputy Commissioner, Kamrup passed order dated 22.02.02 reversing the posit ion by appointing the respondent No. 5 as Mauzadar and maintaining the order of dismissal of the petitioner’s husband. Being aggrieved and contending wrong inte rpretation of the order of the Supreme Court, the petitioner’s husband preferre d an appeal before the Commissioner, Lower Assam Division and the said Commissio ner passed order dated 05.03.2002 staying the aforesaid order passed by the Depu ty Commissioner on 22.02.2002. 10. Finally, the appeal was disposed of by order dated 02.07.02 allowing the appeal and setting aside the aforesaid order passed by the Deputy Commissioner. By the said order, direction was issued to review the earlier order with furthe r observation that the question of withdrawal of suspension etc. and other matte rs relating to proceedings against the respondent No. 5 would remain open for a decision by the Deputy Commissioner according to the merit of the case. 11. After the aforesaid order, the Deputy Commissioner, Kamrup by his order dated 18.09.2002 directed the S.D.O. (C), Rangia to look after the Mouza. Such a course of action was adopted as in the meantime the petitioner’s husband died o n 26.05.2002. After the aforesaid development, the petitioner being the wife of Late Amarendra Nath Choudhury, made an application to the Deputy Commissioner, K amrup for her appointment as Mauzadar. Same was followed by further representati on. Such a course of action was adopted by her as per the provision of Clause 11 6 of the Assam Land Revenue Regulations, 1886 and the Executive Instructions the reunder. Clause -116 is reproduced below: 116. Principle in making appointments: In making appointments the following Pri nciples shall be observed as far as possible. (i) Mauzas inhabited by such indigenous races as Cacharis and Mikirs shall be co mmitted to a Mauzadar who himself belongs to the indigenous population. (ii) Subject to such changes as may be required in order to give effect graduall y to the foregoing principle, a mauzadar’s successor shall ordinarily be selecte d from amongst the members of his family- including relation on the female side if no qualified heir is available on the male side. If an heir, otherwise suita ble, is a minor, the post may be kept open for him for a period not exceeding th ree years, an agent being appointed, provided that the Deputy Commissioner is sa tisfied 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 heredita ry claims. (iia) When it is necessary to appoint an agent (Sarbarhkar) 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 s hould be a man who inspires confidence both by his character and by his financia l stability. (v) Qalifications for appointment to the post of mazudadar will include a fair v ernacular education, such as is required for the keeping of the mauzadari accoun ts. It is desirable that the education should have extended to the middle vernac ular standard. Further, other thigs, being equal, preference shall be given to c andidates who have higher educational qualifications such as those connected by matriculation or higher passes. 12. In the meantime, the Deputy Commissioner, Kamrup by his order dated 24.0 6.2005 revoked the order of suspension passed against the respondent No. 5 and a lso dropped the proceedings initiated against him. By the said order, direction was issued to the Circle Officer, Karara Revenue Circle to hand over the charge of the Mauza to the respondent No. 5. 13. Being aggrieved, the petitioner preferred an appeal before the Commissio ner, Lower Assam Division, Guwahati who passed the order dated 29.10.05 staying the aforesaid order dated 24.05.2005 passed by the Deputy Commissioner. Being a ggrieved, it was the turn the respondent No. 5 to approach this Court by filing W.P.(C) No. 8371/05 and it appears that a stay order was passed in favour of the respondent No. 5. The writ petition was finally disposed of by order dated 11.0 8.06 directing the Commissioner, Lower Assam Division to dispose of the appeal i n accordance with law, pursuant to which, the said Commissioner passed the impug ned order dated 06.01.07. By the said order, the appeal preferred by the petitio ner has been dismissed on two grounds, i.e (i) the purported delay in filing the appeal and (ii) the purported delay in approaching the Deputy Commissioner for her appointment as Mauzadar. 14. So far as the first ground is concerned, the Commissioner, Lower Assam D ivision, Guwahati has wrongly observed that there was delay of more than 120 day s in preferring the appeal which will be evident from the order itself. Anenxure -20 is the impugned order dated 06.01.07 which clearly reflects that the appeal petition was dated 19.09.05 and the same was filed against the order passed by the Deputy Commissioner on 19.06.05. Thus, it cannot be said that there was dela y of more than 120 days. In fact, the appeal was filed within 90 days from the d ate of the order passed by the Deputy Commissioner. Further, the Commissioner, L ower Assam Division, Guwahati while holding that there was delay in filing the a ppeal, did not refer to any provision of law, but simply observed that generally an appeal against the order of the Deputy Commissioner should be submitted with in a period of 60 days. On perusal of the provisions of Clause 116 of the Assam Land and Revenue Regulations, 1886, nothing is discernible as to the period of l imitation regarding preferring an appeal against the order of the Deputy Commiss ioner. Be that as it may, since the appeal was filed within 90 days and there wa s direction of this Court in its order dated 11.08.06 passed in W.P.(C) No. 8371 /05 to dispose of the appeal, I am of the considered opinion that the appeal oug ht not have dismissed on the ground of delay. 15. So far as the second ground is concerned, i.e. delay in approaching the Deputy Commissioner, it has been observed in the impugned order that the husband of the petitioner having died on 26.05.2002, the petitioner ought to have submi tted the application immediately thereafter, but instead she made the same on 05 .07.2003, i.e. after one year. There is nothing in the Regulations so as to deba r the legal heir under Clause 116 from making the claim beyond one year of the d eath of the Mauzadar. 16. As per Clause 116 (ii), a mauzadar’s successor shall ordinarily be selec ted from amongst the members of his family- including relation on the female si de if no qualified heir is available on the male side. It was the duty of the De puty Commissioner to take note that aspect of the matter towards implementation of the aforesaid clause. The petitioner being a widow and even if she did not fi le the application immediately after expiry of her husband, she could not have b een faulted with for approaching the Deputy Commissioner after one year. 17. Another aspect of the matter is that the Deputy Commissioner, Kamrup him self did not pass any order on the application made by the petitioner. She had p referred the appeal to the Commissioner against the order dated 19.06.05 by whic h respondent No. 5 was once again appointed/ reinstated as Mauzadar. 18. The Apex Court in its order dated 03.09.09 although had interfered with the order dated 23.02.2001 by which the service of the respondent No. 5 as Mauza dar was dispensed with, but kept open all other aspects which naturally includes the claim of the petitioner for her appointment as Mauzadar under the aforesaid Clause. It will have to be borne in mind that the respondent No. 5 was appointe d on temporary basis pursuant to dismissal of the petitioner’s husband. This asp ect of the matter has been discussed in the orders passed by this Court in the a forementioned proceedings. Be that as it may, since the petitioner is the wife o f the earlier Mauzadar, Late Amarendra Nath Choudhury, her right for a fair cons ideration under Clause 116 of the Regulations cannot be denied. Be it stated her e that the interference with the dismissal of the petitioner’s husband has attai ned its finality. 19. In view of the aforesaid discussions, while setting aside the order date d 06.01.2007 passed by the Commissioner, Lower Assam Division, Guwahati, the mat ter is remanded back to the Deputy Commissioner, Kamrup for a decision on the ba sis of the application made by the petitioner referred to above. While doing so, the Deputy Commissioner, Kamrup shall take into account all the relevant aspect s of the matter including the provisions of Clause 116 of the Regulations referr ed to above. The entire exercise shall be carried out as expeditiously as possib le, but any rate, not later than 30.11.2010. Till then, the status quo as on tod ay shall be maintained. 20. Consequently, the Annexure-15 order dated 24.06.05 passed by the Deputy Commissioner, Kamrup shall also stand interfered with. 21. Writ petition is allowed to the extent indicated above, without, however , any order as to costs.