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2017 DIGILAW 914 (GAU)

Nikiauva v. Mara Autonomous District Council

2017-07-13

NELSON SAILO

body2017
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. C. Lalramzauva, the learned senior counsel assisted by Ms. Juliana Lalhmangaihi, the learned counsels for the writ petitioners. Also heard Mr. Lalfakawma, the learned counsel for the respondent Nos. 1, 2 & 3. None appears for the private respondent Nos. 4 to 11 despite service. Vide Order dated 17.01.2017, notice was deemed served upon them. Therefore, the case is being disposed without the participation of the said private respondents. Brief facts of the case for disposal of the writ petition may be narrated at the outset the petitioners were elected as Village Council members to the Noaotlah-II Village Council. Vide Notification dated 23.05.2013 (annexure-1), the petitioners formed the Noaotlah-II Village Council with the approval of the Executive Committee of the Mara Autonomous District Council (the Council for short) 2. As some allegations cropped up against the Village Council, the respondent authorities constituted an Enquiry Commission to look into the allegations as directed by the Executive Committee on 26.08.2014. After the enquiry was made by the Commission, a report was submitted to the respondent authorities and the petitioners submitted a representation to the respondent No. 1 on 27.08.2014 (annexure-2) giving their explanations on the allegations made against them. However, the respondents authorities vide Notification dated 14.11.2014 (annexure-3) dissolved the Village Council with immediate effect. Being aggrieved, the petitioners approached this Court by filing W.P. (C) No. 140/2014, which was disposed of vide Order dated 01.08.2016. By the said Order, this Court held that since the petitioners were not given adequate opportunity prior to the dissolution of the Village Council in terms of Section 26(1)(a) of the Mara Autonomous District Council (Village Councils) Act, 1974 (the Village Councils Act for short), the dissolution of the Village Council vide Notification dated 14.11.2014 was set aside. However, liberty was given to the respondents to issuer Show Cause Notice to the petitioners. 3. Pursuant to the disposal of the Writ petition, the petitioners were given a Show Cause Notice by the respondents authorities on 26.08.2016 (annexure-5) asking them to show cause as to why the Village Council should not be dissolved and such show cause reply should be submitted by 12.09.2016. A copy of the Enquiry Report dated 27.8.2014 was also included along with the Show Cause Notice. 4. A copy of the Enquiry Report dated 27.8.2014 was also included along with the Show Cause Notice. 4. The petitioners thereafter submitted their reply to the Show Cause Notice on 6.09.2016 (annexure-6) whereby, they gave their explanations to the allegations made against them. It may importantly be noticed at this stage that against the allegations of mis-utilization of Rs. 1,50,000/- (Rupees one lakh fifty thousand) only, sanctioned under the Panchayati Raj Institution for construction of steps within the village, the petitioners gave their explanations that the amount was utilized for clearing the road between Noaotlah-II village and Belhar village, which was blocked by landslide as directed by Sh. Hrangchunga, who was the sitting member of the District Council and Deputy Chief Whip of the Council. 5. However, the respondents authorities not being satisfied with the reply made by the petitioners to the Show Cause Notice vide impugned Notification dated 07.10.2016 (annexure-7), dissolved the Village Council with immediate effect. Being aggrieved, the petitioners are again before this Court. 6. Mr. C. Lalramzauva, the learned senior counsel submits that as can be seen from the impugned Notification dated 07.10.2016, the main reason for dissolving the Village Council has been reflected as mis-utilization of the fund under the Panchayati Raj Institution amounting to Rs. 1,50,000/- (Rupees one lakh fifty thousand) only, sanctioned for the construction of steps which was diverted for clearing landslide, which occurred at Noaotlah-n-Belhar road and therefore he would confine his argument only to the said allegation. He also submits that although the funds was meant for construction of steps, the same had to be utilized for clearing the landslide at Noaotlah-II-Belhar road on the direction of Sh. Hrangchunga, who is a member of the District Council and also the Deputy Chief Whip of the Council. The circumstance under which the fund was diverted was clearly explained by the petitioners in their Show Cause Reply dated 06.09.2016 and also in the first representation submitted on 27.08.2014. By referring to the impugned Order dated 07.10.2016, the learned senior counsel submits that the respondent authorities have clearly failed to consider the explanation tendered by the petitioners an in fact no reason has been assigned by the respondent authorities in the dissolution order. 7. Mr. C. Lalramzauva, the learned senior counsel further submits that the respondents authorities by submitting a clarification from Sh. 7. Mr. C. Lalramzauva, the learned senior counsel further submits that the respondents authorities by submitting a clarification from Sh. Hrangchunga, Deputy Chief Whip at the subsequent stage and after passing of the impugned Notification dated 07.10.2016 cannot be allowed to clarify the fact that the said person was not responsible for the diversion of the fund in question. He submits that prior to issuance of the impugned Notification dated 07.10.2016, the respondent authorities ought to have considered the explanation of the petitioners by accounting all relevant materials before them. However, the respondents authorities have failed to assigned appropriate reasons for the dissolution of the Village Council and in fact, as the petitioners have approached this Court earlier, the respondent authorities are adamant to take a different view other than to dissolve the Village Council by any means. 8. Mr. C. Lalramzuava, the learned senior counsel in support of his submission relies upon the decisions of the Apex Court rendered in the case of Dipak Babaria & Anr. v. State of Gujarat & Ors., reported in (2014) 3 SCC 502 , Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., reported in 2010 3 SCC 732 and Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and Brothers, reported in (2010) 4 SCC 785 . 9. By referring to the case of Dipak Babaria (Supra), the learned senior counsel submits that the respondent authorities to defend their action cannot be allowed to improve their stand by filing affidavits and incorporating documents which were unavailable or not considered while passing the impugned Order. He therefore submits that the Certificate made by Sh. Hrangchunga denying the fact that he had directed the diversion of the fund in question and enclosed in the affidavit-in-opposition of the respondent authorities after passing of the impugned Notification cannot be taken into account. The learned senior counsel by referring to the case of Secretary and Curator (Supra) and Assistant Commissioner, Commercial Tax Department (Supra) submits that the authority concerned in passing the impugned order failed to assign any reason as to why the Show Cause Reply of the petitioners have not been accepted and therefore, in absence of any reason, the ingredients of natural justice has clearly been overlooked and at the cost of the petitioners. He therefore submits that the impugned Notification dated 07.10.2016 cannot be sustained and the same should be set aside and quashed. He also submits that the petitioners have been working and discharging their respective duties and functions since they took over the Office in the year 2013 and the term of the Village Council due to last only till the early part of the year 2018 before fresh election, the petitioners should be allowed to complete their term. 10. Mr. Lalfakawma, the learned counsel appearing for the MADC authorities submits that the petitioners in their explanation submitted on 27.08.2014 had stated that the fund in question was diverted under the direction of Sh. Hrangchunga, Deputy Chief Whip who in fact was said to have convened a Joint Village Council Meeting. However, the petitioners have nowhere substantiated in their writ petition of such fact besides stating in the reply dated 27.08.2014, that meeting was indeed convened by Shri. Hrangchunga. He therefore submits that had the meeting actually been convened, the petitioners ought to have produced the meeting minutes and the decision taken for diverting the fund in question. However, since the petitioner has failed to do so, the contention and explanation of the writ petitioners for diversion of the fund is without any substance, 11. Mr. Lalfakawma further submits that diversion of fund is not permissible in terms of the provisions of the Mara Autonomous District Council (Transaction of Business) Rules 2011. However, if such diversion is indeed necessitated, the same has to be done as per the provision of the said Rules and with the permission of the Executive Committee of the Council. In the instant case, no such procedure was adopted prior to the diversion of the fund and therefore, the petitioners cannot merely overcome the act of diversion of the fund by stating that it was under the direction of Sh. Hrangchunga, the Deputy Chief Whip. He further submits that under Section 18 of the Village Council Act, each Village Council is authorized to collect fund which shall be known as Village Council Fund. If at all, the Village Council had decided to clear the landslide, they could have easily utilized the Village Council Fund and not divert the fund meant for construction of steps under the Panchayati Raj Institution. Mr. If at all, the Village Council had decided to clear the landslide, they could have easily utilized the Village Council Fund and not divert the fund meant for construction of steps under the Panchayati Raj Institution. Mr. Lalfakawma further submits that had the petitioners utilized the fund for clearing the landslide as stated by them under the direction of Sh. Hrangchunga, the petitioners could have themselves easily obtained a written statement or certificate from Sh. Hrangchunga himself. However, the same having not been done, the contention of the petitioners is without any substance. The respondent authorities on the other hand according to Mr. Lalfakawma have observed all the formalities and procedure prior to dissolving the Village Council and therefore, under such circumstance, the respondent authorities have not committed any illegality and the writ petition being without any merit should be dismissed. 12. I have considered the submissions advanced by the learned counsels for the rival parties and I have also perused and considered the materials available on record. 13. Under the relevant provisions of the Village Council Act, more particularly section 26(1)(a), it has been provided that the Executive Committee by Public Notification order the dissolution of any Village Council if in its opinion, the Village Council is too inefficient or is not able to carry on the Village administration, or is involved in financial mismanagement or misappropriation of public money, or is acting in a manner prejudicial to the interest of the District Council or for any other reasons considered sufficient for such dissolution. 14. In the present case, pursuant to the allegations made by permanent citizens of the area, the respondent authorities constituted an enquiry commission to examine and enquire into the allegations. Upon such enquiry, the Commissioner amongst others found that a sum of Rs. 1,50,000/- (Rupees One Lakh, Fifty Thousand) only received from the 13th Finance Commission and earmarked for construction of steps was utilized for clearing the landslide which occurred between Noaotlah and Belhar Village. Although the petitioners have maintained that such diversion of fund has been made under the direction of Sh. Hrangchunga, the member of the District Council and Deputy Chief Whip, the petitioners have nowhere substantiated that it was indeed under such direction that the fund was diverted. On the other hand, it is the respondent authorities themselves who have secured the certificate from Sh. Hrangchunga. Hrangchunga, the member of the District Council and Deputy Chief Whip, the petitioners have nowhere substantiated that it was indeed under such direction that the fund was diverted. On the other hand, it is the respondent authorities themselves who have secured the certificate from Sh. Hrangchunga. Even after such certificate was issued by Sh. Hrangchunga, the petitioners were not prevented from disproving the contention of the respondents. The petitioners besides explaining that the fund was utilized for clearing the landslide have also not substantiated the magnitude of the landslide, the amount spent and towards man power, engaging mechanical assistance, etc. requiring a sum of Rs. 1,50,000/- (Rupees One Lakh, Fifty Thousand) only. Although the explanation that the fund was spent towards clearing the landslide would suffice ordinarily but however, in the instant case, since the petitioners were confronted with specific allegations, the minimum requirement of the petitioners would have been to convincingly explained as to how the amount was utilized for clearing the landslide. This apart, the diversion of funds as can be seen from the Mara Autonomous District Council (Transaction of Business) Rules, 2011 clearly provides that no fund can be diverted which is already allocated except with due process and after the obtaining the permission of the executive committee of the Council. The petitioners being an elected Village Council Members cannot claim ignorance in matters relating to utilization of fund which are meant for specific purposes. The petitioners although being an elected body cannot claim exemption from the scrutiny of their activities as per the rules and procedures. 15. In the instant case, as can be seen, the petitioners have been given due opportunities to put forth their case and given explanation as to why the Village Council should not be dissolved. However, the petitioners besides shifting the responsibility to Sh. Hrangchunga, without further substantiation have failed to give reasonable explanation. In such circumstances, there is no reason as to why this Court should interfere with the decision of the respondent authorities. 16. It is a well settled law that Court is to examine and interfere, if so required, not on the decision but on the decision making process of the concerned authority. In such circumstances, there is no reason as to why this Court should interfere with the decision of the respondent authorities. 16. It is a well settled law that Court is to examine and interfere, if so required, not on the decision but on the decision making process of the concerned authority. In the present case, the respondent authorities upon examination of the report of the Enquiry Commission and the explanation tendered by the writ petitioners decided that the petitioners were not fit to run the village administration and having found that there was mismanagement of fund due to diversion of the fund meant for construction of steps decided to dissolved the Village Council. Under the facts and circumstances, I do not find any merit in the writ petition and therefore, the same has to fail. Accordingly, the writ petition is dismissed. The interim order passed earlier shall stand merged with this order. No costs.