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2010 DIGILAW 454 (GUJ)

Farsubhai Muljibhai Goklani v. State Of Gujarat

2010-09-27

AKIL KURESHI, SUDHANSU JYOTI MUKHOPADHAYA

body2010
JUDGMENT AKIL KURESHI, J. 1. THIS petition is filed in the nature of public interest litigation by the petitioner who claims to be a social worker in and around Radhanpur Taluka. He has complained about the Member of Legislative Assembly ('MLA' for short) of the area respondent No.5 herein about alleged misuse of the discretionary funds placed at the disposal of the Members of the State Legislative Assembly popularly known as' MLA grant' or 'MLA fund'. 2. SHORTLY stated the facts of the case are as follows: (1) As already noted, the petitioner claims to be a social worker. In this petition filed in the nature of public interest litigation, his grievance is that the respondent No.5 who is an elected member of the State Legislative Assembly from Radhanpur constituency has misused the MLA fund by diverting such funds in the trust in which the said MLA and his wife and family members are trustees. Such funds are utilized for the purpose of improving and creating infrastructural facilities in various educational institutions run and managed by the said trust. (2) It is the case of the petitioner that the respondent No.5 runs a public trust by name of Shree Vivekanand Vikas Mandal, Radhanpur ('Trust' for short). Besides said respondent, other trustees of the trust include his two brothers-in-law, his nephews and his wife. It is, thus, the case of the petitioner that the entire trust is packed with the nearer relatives of the respondent No.5. The trust runs several educational institutions in and around Radhnpur. Through the funds received from the MLA grant, such educational institutions' infrastructural facilities were created and improved by the respondent No.5. Allegations and/or charges showing details of such spending are given in para-7 of the petition which is abstracted hereunder: (3) It is the case of the petitioner that such diversion of the government funds for institutions in which the respondent No.5 himself has controlling interest, was wholly unauthorised. Petitioner has, therefore, prayed for direction to stop respondent No.5 from spending any grant to any of the institutions of the trust where he and any of his relatives are Members, President / Trustees etc.. Petitioner has further prayed that respondent No.3 and 4 State authorities be directed to recover the entire amount spent by the respondent No.5 from 1998 in the trust, institutions, schools etc. in which he had interest. Petitioner has further prayed that respondent No.3 and 4 State authorities be directed to recover the entire amount spent by the respondent No.5 from 1998 in the trust, institutions, schools etc. in which he had interest. Petitioner also prayed for holding ACB inquiry into such spending of funds and to hold departmental inquiry against the erring government officials. Petition is opposed by the State as well as MLA concerned. On behalf of the State, affidavit-in-reply dated 21st June 2007 has been filed in which it is contended inter alia that the guidelines for manner and method for spending of MLA fund is provided in the Government Resolution dated 4/6/2002. Said guidelines do not restrict spending of MLA grants for trust/s in which the MLA has any interest. However, subsequent Government Resolution dated 18.10.2003 certain restrictions were imposed against diversion of the funds by MLA's for their own trust. Further instructions were issued vide Government Resolution dated 31/1/2005 whereby even the trust in which the family members of the MLA have any interest cannot receive funds from the MLA grants. It is stated that none of the grants from the said funds have been used for the trust in which the respondent No.5 has any interest after 18/10/2003. 3. RESPONDENT No.5 has also filed affidavit dated 20/8/2008, wherein in addition to denying the allegations, he has stated as under: 7. With regard to above fact, I say and submit that none of the MLA grant has been misused by the present deponent or diverted to institution contrary to the above resolution of the State Government. I say and submit that before 18.10.2003, an MLA was entitled to use his grant for any institution irrespective of the fact that the said institution was headed by him. In other words, the deponent can disburse the amount from MLA grant even if to the institution which are headed by him or where deponent is member. Therefore, there was nothing wrong in disbursing MLA grant before year 2002-03 to the institution which were headed by the present deponent. I say and submit that such grant is never misused by the deponent and it is used for the purpose for which it is given. He has also imputed malafides against the petitioner and contended that this petition in the nature of public interest litigation is not maintainable. 4. WE have learned counsel for the parties. I say and submit that such grant is never misused by the deponent and it is used for the purpose for which it is given. He has also imputed malafides against the petitioner and contended that this petition in the nature of public interest litigation is not maintainable. 4. WE have learned counsel for the parties. From the record, it appears that there is no dispute that the large funds were diverted in various educational institutions run by the said Trust. It is equally clear that the respondent No.5 and his wife and family members are trustees of the said trust. However, as pointed out in the State affidavit, restrictions on diversion of MLA funds were imposed only vide Government Resolution dated 18.10.2003 and not earlier. These restrictions were further made more stringent by the subsequent Resolution dated 31.01.2005. (1) In Government Resolution dated 04.06.2002 certain guidelines have been issued for spending MLA grant. It is provided that institution receiving such grant should have been registered and should have been in existence at least for last three years and that grants will be used only for the purpose of creating permanent assets. This Government Resolution, however, did not provide for any restriction that such grant cannot be diverted to a trust in which the MLA himself has any interest. In the subsequent Government Resolution dated 18.10.2003, however, it was provided that no amount will be allotted from the MLA grant where the MLA himself is President or head of the registered trust or institution or other members of Managing Committee or trustee. In the subsequent resolution dated 31/1/2003, it has been provided that such loan shall not be utilized in favour of the institution / trust where even the family members of the MLA are associated. (2) It is, thus, clear that prior to 18/10/2003 there was no restriction for MLA fund being diverted to trust in which the MLA had any interest. Such restrictions were introduced only by virtue of resolution dated 18/10/2003 and made further stringent by virtue of resolution dated 31/1/2005. There is nothing on record to suggest that any fund from MLA grant was diverted to any of the educational institutions or the trusts in which the respondent No.5 had interest subsequent to 18/10/2003. State as well as the respondent No.5 have filed replies to this effect. There is nothing on record to suggest that any fund from MLA grant was diverted to any of the educational institutions or the trusts in which the respondent No.5 had interest subsequent to 18/10/2003. State as well as the respondent No.5 have filed replies to this effect. Petitioner has not been able to produce any material to contradict these statements. Even the details given by the petitioner of such diversion of funds pertain to the period prior to 18/10/2003. Under the circumstances, we do not find any illegality committed in such diversion of funds. Counsel for the petitioner, however, submitted that the entire purpose of placing the government funds at the discretion of the MLA is to ensure that small projects which require immediate government financial assistance do not get dragged indefinitely for want of funds and the very purpose would be defeated if the MLA grant is diverted to institutions in which the MLA has overwhelming controlling interest. Therefore, prior to the resolution dated 18/10/2003 also, such diversion of the fund was illegal. We are unable to accept the contention for the simple reason that the previous Government Resolution which laid down guidelines for spending such funds did not put any restriction on such funds not being available to the institutions in which the MLA had interest. Such restrictions came in the year 2003 and thereafter further restrictions were imposed in 2005 only. In the result, the petition fails and is dismissed.