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2018 DIGILAW 1373 (GAU)

Chandan Mech v. Union of India

2018-09-17

A.K.GOSWAMI, AJIT BORTHAKUR

body2018
JUDGMENT : A.K. Goswami, J. Heard Mr. M. Sarania, learned counsel, appearing for the petitioners. Also heard Mr. R.K.D. Choudhury, learned Senior Government Advocate, appearing for respondent Nos. 1 and 3. None appears for respondent Nos. 4 and 5 despite the name of the counsel being shown in the Cause-list. 2. By an order dated 13.08.2018, as no affidavit-in-opposition was filed by the State respondents despite the last opportunity granted, the right to file affidavit-in-opposition on their behalf was closed. 3. In the instant Public Interest Litigation (PIL), though allegations of embezzlement of funds relating to Mech Kachari Development Council is attributed to respondent No. 4, office notes dated 11.07.2018 and 09.08.2018 go to show that no affidavit-in-opposition has been received on behalf of the said respondent. However, Mr. Sarania submits that a copy of what is purported to be an affidavit on behalf of respondent No. 4 was served upon him on 23.05.2018. 4. The petitioner No. 1 is the President and the petitioner No. 2 is the General Secretary of Mech Kachari Jatia Parishad. Petitioner No. 3 is the Secretary of Mech Kachari Welfare Parishad and the petitioner No. 4 is the President of Mech Kachari Mahila Parishad. Mech Kachari Welfare Parishad and Mech Kachari Mahila Parishad are the sister organizations of Mech Kachari Jatia Parishad. 5. Mech Kachari community is recognized as a Scheduled Tribe in the plain districts of Assam. 6. It is pleaded that due to the initiatives taken by the Mech Kachari Jatia Parishad, Mech Kachari community was granted a Development Council by the name of Mech Kachari Development Council. However, their present aspiration is for an Autonomous Council as was granted to Rabha, Tiwa, Mising, Deuri, Thengal Kachari and Sonowal communities. 7. The first Development Council for Mech Kachari was constituted on 22.02.2011 on the basis of recommendation made by the Cabinet Sub-Committee for Formulation and Finalization of Development Councils with the respondent No. 4 as the Chairman. Prior to that, a notification dated 07.01.2011 was issued by the Commissioner and Secretary to the Government of Assam, Department of Welfare of Plains Tribes and Backward Classes, in the form of guidelines, to be followed in connection with the Development Councils of the State. Prior to that, a notification dated 07.01.2011 was issued by the Commissioner and Secretary to the Government of Assam, Department of Welfare of Plains Tribes and Backward Classes, in the form of guidelines, to be followed in connection with the Development Councils of the State. The avowed objective of such Development Councils was to provide maximum participation of the people of backward communities within the framework of the Constitution of India for social, economic, educational, ethnic and cultural advancement of the people belonging to these communities in the State of Assam. 8. A notification dated 07.03.2013 was issued by the Secretary, Welfare of Plains Tribes and Backward Classes Department, Dispur, to be followed by the Development Councils constituted in the State of Assam for formulation, approval and implementation of schemes against allocation of funds made by the Government of Assam for the respective Councils. Another notification dated 21.03.2013 was issued in connection with functions, constitution, election, term of office, meetings of the Development Councils, quorum, resignation, removal of members, filling up of vacancies in the Councils, disqualification for membership, Secretariat of the Councils, Member Secretary, operational framework and removal of difficulties in the functioning of the Councils. 9. A further notification dated 21.05.2014 was issued cancelling the notifications dated 07.01.2011 and 21.03.2013 and, at the same time, notifying fresh guidelines for smooth functioning of the Development Councils. The notification dated 07.03.2013 has not been interfered with and it appears that the same still holds the field. The guidelines under the notification dated 07.03.2013 is in connection with Annual Plan and Annual Budget, formulation and approval of schemes, Drawing and Disbursing Officer, release of fund and utilization as well as maintenance of accounts and audit. 10. The notification dated 21.05.2014, issuing fresh guidelines, is in the domain of objectives and functions, constitution of the Councils, term of office, meetings of the Councils, quorum, resignation of members, removal of members, filling up of vacancies, disqualification for membership, Secretariat of the Councils, Member Secretary, operational framework and removal of difficulties. 11. It appears that by a notification dated 24.02.2016, the Governor of Assam was pleased to re-constitute the Mech Kachari Development Council with the respondent No. 4 as the Chairman, one Dipak Kachari as the Vice-Chairman and twenty-one other Members with the Director of Welfare of Plains Tribes and Backward Classes, as the Member Secretary. 12. 11. It appears that by a notification dated 24.02.2016, the Governor of Assam was pleased to re-constitute the Mech Kachari Development Council with the respondent No. 4 as the Chairman, one Dipak Kachari as the Vice-Chairman and twenty-one other Members with the Director of Welfare of Plains Tribes and Backward Classes, as the Member Secretary. 12. Essentially, by filing this Public Interest Litigation, the petitioners allege that funds are not utilized by the Mech Kachar Development Council against the schemes for which the funds are allotted. However, details of such diversion of allotted funds have not been indicated in the petition. A pointed allegation is made against the respondent No. 4 that the respondent No. 4 had kept the money sanctioned to the Council till 2014 in his personal bank account. It is further alleged that the respondent No. 4 is the Secretary of M/s Sivasagar Tribal Industrial and Commercial Co-operative Society Ltd. and he is having a joint account, bearing A/c No. 36910100001227, with one Dipak Panging, who is the President of the aforesaid society. On 31.12.2014, 09.03.2014 and 06.04.2015, an amount of Rs. 9000.00 (Rupees nine thousand) each was credited in the aforesaid account from the Mech Kachari Development Council, but enquiries revealed that no amount was sanctioned in respect of the aforesaid society under any scheme. It is also alleged that a sum of Rs. 40,00,000.00 (Rupees forty lakh) was allotted for construction of Mech Kachari Guest House, but though the construction of the Guest House has not been started, the entire amount had been withdrawn by the respondent No. 4. Another issue, which the petitioners have raised, is the submission of utilization certificate by the Chairman, which, according to the perception of the petitioners, cannot be accepted as he is not a Government official and, more particularly, when there is a Member Secretary, who is the Government nominee in the Development Council. 13. Mr. Sarania has submitted that, apart from the above, the petitioners also question the notification dated 21.05.2014, whereby fresh guidelines have been issued in cancellation of the earlier guidelines dated 07.01.2011 and 21.03.2013. It is contended by him that in a democratic polity, nomination has no place and that a Member of the Development Council, in that view of the matter, has to be appointed on the basis of popular mandate. It is contended by him that in a democratic polity, nomination has no place and that a Member of the Development Council, in that view of the matter, has to be appointed on the basis of popular mandate. However, as none of the members is made party to this proceeding, we are of the opinion that findings recorded in their absence may prejudicially affect the interest of such nominees and, therefore, we refrain from dilating any further on this aspect of the matter and leave it to be decided in a more appropriate case. 14. Though Mr. Sarania had also argued that a proper administration and fiscal management is not in place in respect of the Development Councils, it appears to us that the same is not a correct position in view of the fact that the Government notification dated 07.03.2013 lays down guidelines wherein, apart from others, as noted earlier, provisions for maintenance of accounts and audit are made. Whether such guidelines has been followed in letter and spirit is a question, which remains unanswered, in absence of a positive response from any of the respondents. 15. On consideration of the matter in its entirety, we deem it appropriate to dispose of this PIL directing the Commissioner and Secretary to the Government of Assam, Welfare of Plains Tribes and Backward Classes Department, to cause an enquiry by an officer to be deputed by him with regard to the allegations, which are noted in this order, and take such action as may be considered appropriate. He is also directed to look into the issue whether there is any diversion of funds from one scheme to another and whether completion reports have been submitted by the Mech Kachari Development Council in accordance with the notification dated 07.03.2013 and to take such action as may be called for. 16. Pil stands disposed of in terms of the above observations and directions.