1) Heard Mr. P. Mahanta, the learned counsel for the petitioner. Also heard Mr. B.J. Talukdar, the learned standing counsel for the Land Revenue
Department (respondent No.1), Mr. D. Doley, the learned Govt. advocate appearing for respondent Nos. 2 and 3, and Mr. B. Rahman, the learned
counsel for the private respondent No.4.
2) By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 15.10.2014, passed by the
Commissioner, North Assam Division, Tezpur whereby the appointment of the petitioner as Gaonbura of Borghat Lot/ Kisamat under Khatowal
Mouza in the District of Nagaon was set aside.
3) The case projected by the petitioner is that his father was the Gaonbura of Borghat Lot/ Kisamat for last 4 decades and that while holding the said
post, he had died in harness on 03.04.2012. It is claimed that when his father was suffering from prolonged illness the petitioner had assisted his father
to collect land revenue and to do other related works of a Mauzadar. The petitioner continued to perform the said works for some time even after the
death of his father. After the death of his father, the petitioner had applied for being appointed as gaonbura. The Circle Officer concerned had
forwarded the said application to the Additional Deputy Commissioner, Sadar Sub- Division, Nagaon together with a report dated 08.05.2012.
However, on 30.10.2012, the authorities had issued a formal advertisement for selection and appointment of suitable candidate for the said post.
However, till the last date prescribed, no application had been submitted. Accordingly, a fresh advertisement was issued on 15.03.2013. This time, 9
candidates including the petitioner were shortlisted and call letters dated 20.09.2013 was issued for interview slated on 24.09.2013 in the Office of the
Addl. Deputy Commissioner (Gaonbura Branch), Nagaon. It is projected that the people of the locality had submitted representation dated 27.11.2013
before the Deputy Commissioner, Nagaon in support of the candidature of the petitioner. By order dated 30.11.2013, passed by the Addl. Deputy
Commissioner, Nagaon, the petitioner was appointed on temporary basis as Gaonbura of Borghat Lot/ Kisamat on the vacancy arising due to the
death of his father. The aggrieved respondent No.4 filed an appeal under Executive Instructions No. 162-C against the said order dated 30.11.2013
before the Commissioner, North Assam Division, Tezpur. The respondent No.4 as well as the petitioner had submitted their respective written
statement in connection with the said appeal. The learned Commissioner, North Assam Division, Tezpur by order dated 15.10.2014, held that the
appointment of the petitioner as Gaonbura was not sustainable and accordingly, the order dated 30.11.2013 was set aside and the appointing authority
was directed to consider the case of the respondent No.4 for appointment as Gaonbura of the concerned village within 30 days.
4) Challenging the said appellate order, the learned counsel for the petitioner has submitted that the advertisement dated 30.10.2012 for filling up the
post of gaonbura required the interested candidate to be the permanent resident of the concerned lot/ lat. However, the said condition was contrary to
the requirement of the Executive Instructions No. 162-A, where the only factors that was required to be taken into consideration were (1) the claims
of the family of the gaonbura, (2) the views of the mauzadar, (3) the suitability of the person for the post. It is submitted that the petitioner as well as
his father were both residents of Hemarbari Village, under P.S. Khatowal, Samaguri, Dist. Nagaon and his correct address was disclosed in his
application and that the said village was situated in the same Mauza, for which the views of the Mauzadar was a relevant factor. The Addl. Deputy
Commissioner, Nagaon had accepted the application of the petitioner and, as such, the petitioner had no reason to challenge the condition imposed in
the advertisement that the applicants for the post of gaonbura should be a resident of the same lot. By relying on the case of Kuladhar Chakraborty &
Ors. Vs. Abdul Khandakar & Ors., (2008) 3 GLR 219: (2008) 1 GLT 234, it is submitted that the Division Bench of this Court had held that addition
or subtraction to the factors mentioned in Executive Instructions No. 162-A can be made by the competent authority either by amending/ modifying
the existing Executive Instructions and that it was further held that in the absence of amendment/ modification of Executive Instructions No. 162-A or
any other Executive Instructions, Executive Instructions No. 162-A is to be followed and adhered to by all the appointing authority while considering
the appointment of gaonburas. Accordingly, it is submitted that the appellate authority had interfered with the selection and appointment of the
petitioner as gaonbura only on the ground that the petitioner was not a resident of the concerned lot. It is submitted by the learned counsel for the
petitioner that the said requirement was dehors the Executive Instructions No. 162-A, as such, the impugned appellate order is not sustainable in law,
and accordingly, the impugned order is liable to be interfered with.
5) The learned standing counsel for the Land Revenue Department has submitted that the advertisement dated 30.10.2012 was contrary to the
provisions of Executive Instructions No. 162-A. However, it is submitted that the said clause contained in the advertisement dated 30.10.2012 is not
the subject matter of challenge in this writ proceeding. It is further submitted that the provisions of Executive Instructions No. 162-D provides for
appeal before the Government, as such, it would be the prerogative of the Government alone to decide the matter. Hence, it is submitted that the
petitioner is not entitled to any relief by this writ Court in view of existence of alternative efficacious remedy. The learned Govt. counsel appearing for
the State respondents No.2 and 3 has adopted the submissions made by the learned standing counsel for the Land Revenue Department.
6) Per contra, the learned counsel for respondent No.4 has referred to his affidavit- in- opposition and it is submitted that as on date, in the absence of
any challenge to the advertisement dated 30.10.2012, the petitioner having participated in the selection process, cannot assail the selection process
after the result is against him. It is submitted that the admitted fact is that the petitioner is neither a resident of the concerned lot, nor he has any
property in the concerned lot. Therefore, in this case, the villagers of the concerned lot had deemed it fit that a resident of their village be their
gaonbura and accordingly, in a public meeting held on 13.04.2012, a resolution was adopted to appoint the respondent No.4 as their gaonbura, which
was signed by 500 residents of the village. Thereafter, when the Addl. Deputy Commissioner, Nagaon had issued a notice dated 04.03.2012 to the
petitioner and to the respondent No.4 to attend the interview, the respondent No.4 submitted his objection on the ground that the petitioner was not a
permanent resident of the concerned lot. To show that the address of the petitioner was not in the concerned village, the learned counsel for the
respondent No.4 has placed reliance on (i) the certificate given by the Govt. Gaonbura, (ii) the voter’s list of the petitioner, (iii) Lat Mandal’s
report. It is submitted that as the Addl. Deputy Commissioner, Nagaon did not address the objection of the respondent No.4 and did not take in to
account the wishes of the villagers, the respondent No.4 had filed an appeal under Executive Instruction No. 162-B, which was allowed. Hence, it is
submitted that the appointment of the respondent No.4 ought not to be disturbed. Accordingly, the learned counsel for the respondent No.4 has
supported the order impugned herein.
7) To enable us to appreciate the issue in question, Executive Instruction Nos. 162 and 162 (A) are quoted as follows:
“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 be 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.â€
“162-A. Appointment and dismissal of gaonburas. - Gaonburas shall be appointed, suspended and dismissed, in case of Sadar Sub-Division by the
Deputy Commissioner or the Sub-Divisional Officer (Sadar) and in case of outlying Sub-Divisions by the Sub-Divisional Officers.
If however the post of S.D.O. is vacant in case of outlying sub-Division, the powers of appointment, suspension and dismissal of gaonburas may be
exercised by the Assistant Commissioner or the Extra Assistant Commissioner of the outlying Sub-Division as may be authorized by the Deputy
Commissioner by an order in writing in this behalf.
When a gaonbura is suspended, the notice of suspension shall ordinarily be served on the gaonbura by an Officer of the status of Revenue Officer
who shall take over all official Books and papers from him.
The fact of gaonbura's suspension shall be communicated to the raiyats of the villages concerned through the Gaon Panchayat or in any convenient
manner and shall be reported to the Deputy Commissioner without delay. In case of outlying Sub-Divisions by the S.D.O.'s and in case of Sadar Sub-
Divisions by the S.D.O's (Sadar) if the order is passed by such officer. In the matter of appointment of gaonburas, the following factors shall be taken
into consideration:
(1) The claims of the family of the gaonbura.
(2) The views of the mauzadar.
(3) The suitability of the person for the post.â€
8) It is, thus, seen that the place of residence of the candidate for appointment to the post of gaonbura is not a factor provided for in the Executive
Instructions.
9) As indicated by the learned Standing Counsel for the Revenue Department, it is seen that the Executive Instructions No. 162-D provides for review
of the order passed by the Commissioner of Divisions, which lies to the State Government within a period of 90 (ninety) days from the date of passing
of such order by the Commissioner. It is seen that in the case of Mahbubur Rahman Vs. State of Assam & Ors., (2005) 4 GLT 397, this Court had
refused to entertain the writ petition on the ground of that a petition for review lies before the State Government.
10) Accordingly, this Court does not find any overwhelming reason to entertain the writ petition when an alternative and efficacious remedy as
provided under the Executive Instructions is available. Hence, the petitioner is at liberty directed to avail the alternative remedy available to him, if so
advised. Therefore, with such liberty, this writ petition stands closed without adjudicating the writ petition on merit.
11) It is seen on appeal filed by the respondent No.4 against the order dated 30.11.2013 passed by the Addl. Deputy Commissioner, Nagaon in Case
No. 2/2014, the appellate authority, i.e. the Commissioner, North Assam Division, Tezpur had passed the impugned order on 15.10.2014. This writ
petition to challenge the order dated 15.10.2014 was filed on 27.11.2014, i.e. well within the period of 2 (two) months. Hence, this Court is inclined to
provide that in the event the petitioner prefers a petition for review before the competent authority within a period of one month from today against the
impugned order dated 15.10.2014, passed by the Commissioner, North Assam Division, Tezpur in Case No.2/2014, the said authority shall not dismiss
such review petition on the ground of delay and the said review, if filed, shall be disposed of on merit without being influenced with any observations
made herein.
12) It is seen that by order dated 03.12.2014, passed in this writ petition, this Court had directed that status-quo existing as on that date in respect of
appointment of gaonburha of the Borghat Lat/Kismat shall be maintained. It is submitted that on the strength of the said interim order, the petitioner is
continuing to serve as the gaonburha. Hence, it is provided that for a period of 4 (four) weeks from now till such review is filed, the status-quo in
respect of appointment of the petitioner shall continue. Thereafter, the review authority shall have discretion to pass or not to pass any interim order as
it may deem fit and proper.
13) Rule issued by order dated 20.06.2019 stands discharged in terms of this order, leaving the parties to bear their own cost.
