# STATE OF ASSAM & ORS v. SHRI KANAK'. CHANDRA DUTIA

- **Citation:** [1967] 1 S.C.R. 679
- **Court:** Supreme Court of India
- **Decided:** 1966-10-03
- **Case number:** Civil Appeal No. 254 of 1964
- **Bench:** K. Subba Rao, M. Hidayatullah, S. M. S!Kri, R. S. Bachawat, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-assam-ors-v-shri-kanak-chandra-dutia-3901
- **Pages:** 6

## Headnote

Constitution of India, 1950, Ar!. 311(2)-Civil post-Mauzadar in
Assam Valley, if holder of civil post entitled to protection of Article.
The respondent, who was a Mauzadar in the Assam Valley, was dismissed from office without complying with the provisions of Art. 311(2)
of the Constitution. His writ petition to the High Court w;i.s allowed
on the ground that he held a civil post under the State of Assam and was
entitled to the protection of the Article.
In appeal by the State,
HELD : In the light of the system of recruitment, employment and
functions, a Mauzadar is a servant and the bolder of a civil pest, un4er
the State, entitled to the protection of the Article.
A civil post means a post not connected with the defence and outside
the regular civil services. It is an office or a position to which duties in
connection with the affairs of the State are attached. It is under the administrative control of the
State but
need
not necessarily carry
0 a
definite rate of pay" and may involve only part-time employment.
A
person holding the post is a person serving or employed under the State.
The existence of the relationship of master and servant between the State
and a person holding a post under it, is indicated by the State's right to
select and aypoint the holder of the post, its right to suspend and dismiss
him., its right to control the manner and method of his doing the work
and the payment by it of his wages or remuneration. Such a relationship may be established by the presence of all or some of these indicia
in conjunction with other circumstances, and its existence is a question
of fact in each case.
[682 G, H; 683 A, B, HJ
Under the Mauzadari system of collecting revenue, prevailing in the
Assam Valley, the revenue charge of a Mauza and the responsibility for
the whole revenue of it, in the first instance,
rest with the Mauzadar.
Originally he may have been a revenue farmer and an independent contractor but under the existing system, he is a subordinate public servant
working under the supervision and control of the Deputy Commissioner:.
He is · a Revenue Officer and ex--0fficio Assistant Settlement Officer exer•
cisin~ delegated powers of Government, and the State has the. power and
the nght to select and appoint him and the power to suspend and 'dismiss
him. Though he may not be a whole-time employee and receives by way
of remuneration a commission on his collections and sometimes a saiarv
he holds an office on the revenue side of the administration to which
specific and onerous duties in connection with the affairs of the State are
attached.
[683 E-G]
Observations in V.mkata Swamy v. Superintendent of Post Of/ica
A.I.R. 19S7 Orissa 112, that a part-time employee cannot be the holder
of a civil p<>st disapproved.

## Text

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STATE OF ASSAM & ORS.
v.
SHRI KANAK'. CHANDRA DUTIA
October 3, 1966
[K. SUBBA RAO, C. J., M. HIDAYATULLAH, S. M. S!KRI,
R. S. BACHAWAT AND RAGHUBAR DAYAL, JJ.J
Constitution of India, 1950, Ar!. 311(2)-Civil post-Mauzadar in
Assam Valley, if holder of civil post entitled to protection of Article.
The respondent, who was a Mauzadar in the Assam Valley, was dismissed from office without complying with the provisions of Art. 311(2)
of the Constitution. His writ petition to the High Court w;i.s allowed
on the ground that he held a civil post under the State of Assam and was
entitled to the protection of the Article.
In appeal by the State,
HELD : In the light of the system of recruitment, employment and
functions, a Mauzadar is a servant and the bolder of a civil pest, un4er
the State, entitled to the protection of the Article.
A civil post means a post not connected with the defence and outside
the regular civil services. It is an office or a position to which duties in
connection with the affairs of the State are attached. It is under the administrative control of the
State but
need
not necessarily carry
0 a
definite rate of pay" and may involve only part-time employment.
A
person holding the post is a person serving or employed under the State.
The existence of the relationship of master and servant between the State
and a person holding a post under it, is indicated by the State's right to
select and aypoint the holder of the post, its right to suspend and dismiss
him., its right to control the manner and method of his doing the work
and the payment by it of his wages or remuneration. Such a relationship may be established by the presence of all or some of these indicia
in conjunction with other circumstances, and its existence is a question
of fact in each case.
[682 G, H; 683 A, B, HJ
Under the Mauzadari system of collecting revenue, prevailing in the
Assam Valley, the revenue charge of a Mauza and the responsibility for
the whole revenue of it, in the first instance,
rest with the Mauzadar.
Originally he may have been a revenue farmer and an independent contractor but under the existing system, he is a subordinate public servant
working under the supervision and control of the Deputy Commissioner:.
He is · a Revenue Officer and ex--0fficio Assistant Settlement Officer exer•
cisin~ delegated powers of Government, and the State has the. power and
the nght to select and appoint him and the power to suspend and 'dismiss
him. Though he may not be a whole-time employee and receives by way
of remuneration a commission on his collections and sometimes a saiarv
he holds an office on the revenue side of the administration to which
specific and onerous duties in connection with the affairs of the State are
attached.
[683 E-G]
Observations in V.mkata Swamy v. Superintendent of Post Of/ica
A.I.R. 19S7 Orissa 112, that a part-time employee cannot be the holder
of a civil p<>st disapproved.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 254 of
1964.
679
Ml6SupC.l./66-!5
680
SUPUMB COURT UPORTS
(1967] I S.C.R.
Appeal by special leave from the judgment and order dated
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August 13, 1963 of the Assam and Nagaland High Court in Civil
Rule No. 387 of 1962.
S. V. Gupte, Solicitor-General and Naunit Lal, for the appellant.
K. R. Chaudhuri, for. the respondent.
The Judgment of the Court was delivered by
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Bacbawat, J. This appeal raises the question whether a Mauzadar in the Assam Valley holds a civil post under the State of
Assam, and is entitled to the protection of Art. 311 (2) of the Constitution. On March 4, 1939, respondent, Kanak Chandra Dutta,
was appointed Mauzadar of Mancotta Mouza in the Dibrugarh
Sub-division of Lakhimpur District. His father also before his
death was the Mauzadar of Mancotta Mouza for about 52 years
from 1885 to 1938. Under the orders of the Deputy Commissioner,
Lakhimpur, the respondent was suspended on August 22, 1949
and was dismissed from the office of the Mauzadar on July 4, 1962.
It is common case that this dismissal from office was made without
complying with the provisions of Art. 311(2) of the Constitution.
On a writ petition filed by the respondent, the Assam High Court
quashed the order of dismissal. The High Court held that the respondent held a civil post under the State of Assam, and was entitled
to the protection of Art. 311 (2) of the Constitution. The correctness of this finding is challenged by the State of Assam in this appeal
by special leave.
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Under the Mauzadari system of collecting revenue prevailing
in the Assam Valley, the revenue charge of a Mouza and the responsib.ility for the whole revenue of it in the first instance rest
with the Mauzadar. The Mauzadar is spoken of as a "revenue
contractor'', see Baden-Powell's Land Systems of British India,
Vol. 3, p. 459. A brief description of the Mauzadari system is
given at pp. 56 and 57 of the Introduction to the Assam Land
Revenue Manual, 6th Edn. The executive instructions appearing
in paragraphs 115 to 159 and 167(a) at pp. 203 to 215 and 217 to
222 give the method of selection, appointment and dismissal of a
Mauzadar, the duties and emoluments of the office and the registers
to be kept and maintained by him. The Mauzadar is generally
an influential and well-to-do resident of his Mouza.
He may be
appointed and dismissed by the Deputy Commissioner subject to the
Commissioner's approval and suspended by the Deputy Commissioner on his own authority. A Mauzadar's successor is ordinarily selected from amongst the members of his family.
If a suitable heir of the deceased Mauzadar is a minor, the post may be kept
open for him for a period not exceeding three years, an agent being
appointed in the meantime to carry on the duties of the Mauzadar.
Every Mauzadar before his appointment has to execute a written
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ASSAM v. KANAK CHANDRA (Bachawat, /.)
681
agreement (kabuliyat) in the prescribed form.
He is also required to
furnish security to the sa~isfaetion of the Deputy Commissioner.
A Mauzadar is a public servant whose primary duty is to collect
land revenue and other Government dues with the collection of
which he is entrusted. He is responsible for the collection of
poll-tax, house-tax, tauzi-bahir revenue, grazing fees and forest
dues. He undenakes to pay into the treasury the full amount of
all instalments of land revenue and local rates included in the
Jamabandi and of house-tax, poll-tax and grazing fees within one
month of the date on which they fa[J due for payment. In regard to
land revenue, his duties are confined to collection and he is not
concerned with its assessment, the settlement of land and the checking of maps or assessment papers.
He is charged with the special duties of supervising the performance of duties by Gaonburas, to receive applications for .i\'asfe
lands which he is authorised to entertain and to submit them with a
report to the proper revenue authority, to submit reports of cases
sent to him by special order for local enquiry, to assist the district
authorities in the assessment of income-tax, to report, when so
directed, upon the sufficiency of tht: security offered by the lessees
of Government or Local Board ferries, fisheries etc., to submit
weekly reports upon the condition of crops, the prevalence of
epidemics amongst men or cattle, the loss of life caused by wild
animals and the appearance of insect pests, to compile and submit
to the Civil Surgeon a monthly return of vital statistics, to check the
Gaonburas' reports of births and deaths by local inspection, to
effect field mutations and field partitions in uncontested cases, to
assist Government in any work connected with the village organi·
sation system, to warn persons not to allow their cattle to stray on
or damage the roads, to report offenders and encroachments on
roadside lands and to submit weekly returns of collections. Generally, a Mauzadat is required to act as the Deputy Commissioner's
assistant in all administrative matters within his Mouza so far ·as he
may be called upon to do so.
In order to deal properly with mutation and other work, the
Mauzadar has free access to the settlement papers in the hands of
mandals, and it is the duty of the manda/s to attend upon him, when
required, during such invesiigations as are conducted by him. The
Mauzadar is required to keep and main!ain a number of official
registers, and minute details of keeping the accounts and the regis•
ters are prescribed. The criminal prosecution of a Mauzadar
requires the Commissioner's sanction. In. exceptional cases, the
Deputy tornrnissioner may impose upon.him an executive fine of an
amount nor exceeding Rs. 200/-.
ti82
SUPIU!Mli OOUllT UPORTS
(1967] I S.C.R.
The Mauzadar is permitted to address his correspondence with
Government offices "service bearing", and is given a small annual
allowance for the provision of stationery. He is responsible for
the payment of process fee on all processes issued at his instance.
His remuneration as Mauza.dar is generally by a commission on the
revenue, local rates and grazing dues collected by him, but he may
also be paid a fixed salary.
The Mauzadar may be invested with the power of attachment
and sale of movables under s. 69 of the Assam Land and Revenue
Regulation 1886 (Regulation No. I of 1886). Mauzadars are
appointed Revenue Officers under s. 124 of the Regulation. All
Mauzadars in the Assam Valley and in the case of Mauzadars who
are minors, their Sarbarahkars have been appointed ex-officio
Assistant Settlement Offic~rs and invested with the powers to effect
registration under s. 53(A) in uncontested cases and to dispose of
under Chap. VI of the Regulation all applications for partition of
revenue-paying estates in which no objection is preferred. Sec footnotes toss. 124, 133 and 137 of the Regulation at pp. 41, 44 and 45
of the Manual.
A Mauzadar may own a tea garden and other landed property
and engage in trade or politic.~. but if any of his extraneous occupations interferes seriously' with his primary duties as a Mauzadar, the
Deputy Commissioner is required to consider whether he should be
retained in his office.
The question is whether a Mauzadar is a person holding a
civil post under the State within Art. 311 of the Constitution. There
is no formal definition of "post" and "civil post". The sense in
which they arc used in the Services Chapter of Part XIV of the
Constitution is indicated by their context and setting. A civil post
is distinguished in Art. 310 from a post connected with defence;
it is a post on the civil as distinguished from the defence side of the
administration, an employment in a civil capacity under the Union
or a State. See marginal note to Art. 311. In Art. 311, a member of
a civil service of the Union or an all-India service or a civil service
of a State is mentioned separately, and a civil post means a post
not connected with defence outside the regular civil services.
A post
is a service or employment, A person holding a post under a State
is a person serving or employed under the State. Sec the marginal
notes to Arts. 309, 310 and 31 I. The heading and the sub-heading
of Part XIV and Chapter I emphasise the element of service. There
is a relationship of master and servant between the State and a per-
;on holding a post under it. The existence of this relationship is
indicated by the State's right to select and appoint the holder of the
post, its right to suspend and dismiss him, its right to control the
manner and method of his doing the work and the payment by it of
his wages or remuneration. A relationship of master and servant
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ASSAM v. KANAK CHANDRA (Bachawat, /.)
683
may be established by the presence of all or some of these indicia,
in coniunction with other circumstances and it is a question of fact
in each case whether there is .such a relation between the State and
the alleged holder of a post.
In the context of Arts. 309, 310 and 311, a post denotes an
office. A person who holds a civil post under a State holds "office"
during the pleasure of the Governor of the State, except as expressly
provided by the Constitution. See Art. 310. A post under the State
is an office or a position to which duties in connection with the
affairs of the State are attached, an office or a position to which a
person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a
post may be abolished and a person holding a post may be required
to vacate the post, and it emphasises the idea of a· post existing
apart from the holder of the post. A post may be created before
the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is
not the holder of a post. A post under the State means a post under
the administrative control of the State. The State may create or
abolish the post and may regulate the conditions of service of persons appointed to, the post.
Judged in this light, a Mauzadar in the Assam Valley is the
holder of a civil post under the State. The State has the power and
the right to select and appoint a Mauzadar and the power to suspend
and dismiss him. He is a subordinate public servant working
under the supervision and control of the Deputy Commissioner.
He receives by way of remuneration a commission on his collections
and sometimes a salary. There is a relationship of master and
servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties
in connection with the affairs of the State are attached, an office
which falls vacant on the death or removal of the incumbent and
which is filled up by successive appointments. He is a responsib e
officer exercising delegated powers of Government. Mauzadars in
the ASsam Valley are appointed Revenue Officers and ex-officio
Assistant Settlement Offirers. Originally, a Mauzadar may have
been a revenue farmer and an independent contractor. But having
regard to the existing system of his recruitment, employment and
functions, he is a servant and a holder of a civil post under the
State.
Counsel for the State stressed the fact that normally a Mauzadar does not draw a salary. But a post outside the regularly constituted services need not necessarily carry "a definite rate of pay."
The post of a Mauzadar carries with it a remuneration by way of a
commission on collections of Government dues. Counsel stressed
the fact that a Mauzadar is not a whole-time emplcyee. But a post
684
SUPllBMB COUAT llBPOR TS
[1967] I S.C.R.
outside the regularly constituted services may Ix a part-time employ·
ment.
The conditions of service of a Mauzadar enable him to
engage in other activities.
In Venkata Swamy '" Superi/l/endent of Post Offices('), the
Orissa High Court held, on a consideration of the relevant conditions of employment, that a temporary extra-departmental branch
post-master was not a person holding a civil post, but the observation in that case that a part-time employee cannot be the holder
of a civil post outside the regularly constituted services is too wide
and cannot be supported. In Sher Singh v. State of Rajasthan(2),
the Rajasthan High Court hc!a that a chaudhari appointed under
the Land Revenue Act of Bikancr is not entitled to the protection
of Art. 311.
The report of the case does not disclose the functions
of the chaudhari and the regulations governing his employment.
In Bindu Nath v. State of Assam(3), the Court found that the applicant was never appointed to the post of a Mauzadar, and no question of the protection of Art. 311 could arise in the circumst~nces.
The appeal is dismissed with costs.
V.P.S.
(I) A.l.R. 1957 Orissa, 112.
(2) 1.L.R. [1956] 6 Raj. 335, 339-340.
(3) A.l.R. 1959 As"11n. 118.
Appeal dismissed.
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