Gauhati High Court
Shri Bikrom Singha Lahkar & Anr vs The State Of Assam And 3 Ors on 4 April, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
WP(C) 3218 of 2015
SHRI BIKROM SINGHA LAHKAR & ANR. .....Petitioners
Vs
THE STATE OF ASSAM AND 4 ORS. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. A.K. Bhattacharyya, Sr. Adv.
: Mr. S. Dutta, : Mr. D.K. Bhattacharyya.
Advocates for the Respondent : Mr. B.N. Sarma, Mr. SS Roy, Mrs. J Dutta.
: Mr. P.K. Roy Choudhury, N.G. Kundu, : Mr. G. Deka, Ms. R. Deka, : Mr. N.C. Barooah, Mr. S.M. Sarma.
Date of hearing : 07.02.2017, 28.02.2017 and 16.03.2017
Date of Judgment and Order : 04.04.2017
JUDGMENT AND ORDER (CAV)
1. Heard Mr. A.K. Bhattacharyya, learned Senior Advocate for the petitioners, Mr. B.N. Sarma, learned Senior Govt. Advocate appearing for the State Respondents No.1 to 4 and Mr. P.K. Roy Choudhury, the learned counsel for the Respondent No.5.
2. This writ petition was filed on 01.06.2015. The Respondent No.5 filed his Affidavit in Opposition on 15.02.2016 (hereinafter referred to as "AO dt.15.02.16"). On 14.03.2016, the Petitioner filed his Affidavit-in- Reply against the said AO dt.15.02.16 (hereinafter referred to as "AR dt.14.03.16"). On 06.04.2016, the State Respondents No.1 to 4 filed their Affidavit-in- opposition (hereinafter referred to as "AO dt.06.04.16"). On 16.05.2016, the petitioner filed his Affidavit- in- Reply against the AO dt.06.04.16 WP(C) 3218/2015 Page 1 of 16 (hereinafter referred to as "AR dt.16.05.16"). Thereafter on 17.06.2016, the Respondent No.5 filed his rejoinder to the Affidavit- In- Reply of the petitioner (hereinafter referred to as "RA dt.17.06.16"). On 18.07.2016, a rejoinder affidavit was filed on behalf of the Respondent No.3 (hereinafter referred to as "RA dt.18.07.16"). Again the Petitioner filed an additional affidavit on 21.12.16 to bring on record some documents (hereinafter referred to as "AA dt.21.12.16"). On 17.01.17, a Rejoinder Affidavit was filed on behalf of the Respondent No.3 (hereinafter referred to as "RA dt.17.01.17"). On 17.01.17, the Respondent No.5 filed yet another Rejoinder Affidavit to the AA dt.21.12.16 (hereinafter referred to as "RA dt.17.01.17").
Submissions on behalf of the petitioners:
3. Mr. A.K. Bhattacharyya, the learned Senior Counsel has made an elaborate argument. His truncated submissions are that the petitioner No.1 is the Honorary Secretary and also a life member of the Assam Flying Club, which is a society registered under the Societies (Registration) Act, 1860 vide No. RS/KAM(M)/263/G/735 of 2013-14 dated 06.03.2014. The Assam Flying Club was initially registered as a Co-
operative Society in the year 1958 under the Assam Co-operative Societies Act, 1949. The club was almost defunct by the year 2009 and with the help of several known personalities, steps were taken to revive the same. The petitioner No.1 was initially appointed by the Governor of Assam as the honorary Secretary of Assam Flying Club under the provisions of bye laws 26 (E) of Assam Flying Club vide Notification No. SYW.203/2013/118 dated 07.10.2013.
4. The appointment of the petitioner as the Honorary Secretary of the Club was made without any regularization and there was no accrual of any service benefits of any sort attached to such appointment and therefore, the public element is absent in such appointment. Nevertheless, the appointment of the petitioner as the Honorary Secretary of Assam Flying Club was challenged by the respondent No. 5 by filing W.P.(C) 6809/2013. The said writ petition was dismissed by the Hon'ble Single Judge of this Court by order dated 21.02.2014. However, an appeal was preferred by the Respondent No.5 herein and this Court by an order dated 04.03.2015 allowed Writ Appeal No. 102/2014. Consequently, the appointment of the present petitioner was set aside by order dated 04.03.2015 and the State Respondents No. 1 to 4 herein were given the WP(C) 3218/2015 Page 2 of 16 liberty to hold the selection afresh within a period of 4 months from the date of receipt of the certified copy of the order and during this interregnum, the said respondents were given liberty to make temporary arrangement to the post of Secretary so that the functioning of the Assam Flying Club was not hampered. Two review petitions were filed against the aforesaid judgment. The Petitioner No.2 herein had filed Review Petition No. 72/2015 and the Petitioner No.1 had filed Review Petition No. 83/2015. Both the said review applications were dismissed by order dated 28.07.2015, but with the direction that it will be open for the Assam Flying Club or any of its official to proceed with its grievance in the present writ petition and it further ordered that the Writ Court would be at liberty to proceed with W.P.(C) 3218/2015 and decide the same in accordance with law, further making it clear that the judgment and order dated 04.03.2015 passed in Writ Appeal No. 102/2014 would not come in the way of adjudication of this writ petition.
5. It was submitted that a meeting of the Assam Flying Club was held on 03.01.2014 in the Official Residence of then Chief Minister of the State, who was the President of the said club. As per the suggestions made by the Registrar of Co-operative Societies, Assam, who was present, the meeting resolved to cancel the registration under the Assam Co-operative Societies Act, 1949 and to get it registered under the Societies Registration Act, 1860. By virtue of Resolution No.18 adopted therein, all the existing Committees including Board of Directors was dissolved with immediate effect. Thereafter, by Resolution No. 19, the meeting empowered the then Chief Minister to act as President and the Petitioner No.1 to act as its Honorary Secretary. Thereafter, by a letter dated 04.03.2014, the Registrar of the Co-operative Societies, Assam was requested to cancel the registration of Assam Flying Club under Societies Registration Act, 1860. The application for registration was made on 05.03.2014 and Assam Flying Club was registered under the Societies Registration Act on 06.03.2014 and Registration Certificate was issued on the same day.
6. On 03.07.2014, the Registrar of Co-operative Society informed that the registration of Assam Flying Club was already cancelled vide office notification dated 12.02.2010 and the liquidation proceeding of the Club was closed vide order dated 06.08.2012.
WP(C) 3218/2015 Page 3 of 167. By a letter dated 07.08.2014, the petitioner requested the Commissioner & Secretary to the Govt. of Assam, Sports & Youth Welfare Department to revoke all the government orders. Accordingly, the Commissioner & Secretary to the Govt. of Assam, Sports & Youth Welfare issued a notification bearing No. SYW.21/97/Pt/268 dated 05.12.2004, the previous notifications (i) dated 19.05.2007, by which the Ad-Hoc Governing Body of Assam Flying Club was constituted, and (ii) notification dated 07.10.2013, by which the petitioner No.1 was appointed as the Honorary Secretary of Assam Flying Club was appointed were cancelled with immediate effect. Thereafter, vide letter issued by the Deputy Secretary to the Govt. of Assam, Sports & Youth Welfare Department under Memo No. SYW.21/97/Pt./270 dated 20.02.2015, it was stated that the Assam Flying Club was a Registered Society under Societies Registration Act, 1860 and henceforth the General Assembly and the Governing Body of Assam Flying Club will control the function of Assam Flying Club. It mentioned that vide Resolution No. 20, the Hon'ble President had decided that all necessary funds will be provided by the State Govt. and for bigger amount required for establishing "North East Aviation Training Academy" and procurement of new aircraft, the Assam Flying Club will approach the North Eastern Council through Department of Planning & Development.
8. It was submitted that by letter No. CO.4/2013/67 dated 13.04.2015, the Additional Registrar of Co-operative Societies (General), Assam, submitted a letter No. CGDA(A)53/2011/Pt-i/110 dated 09.07.2014 and a report of the Assam Flying Club Limited dated 29.10.2014 submitted by Sri Dilip Kumar Boro, Deepak Mandal and Prasenjit Choudhury, all Senior Inspectors/ Auditors of Co-operative Societies, HO, Assam. As per the letter dated 3/9th July, 2014 of the Sub-Registrar of Co-operative Societies, O/o. District Registrar of Co-operative Societies, Guwahati to the Additional Registrar of Co-operative Societies (General), Assam, the registration of the Assam Flying Club had been cancelled vide Office Notification No. CGDG/39/2004/6 dated 12.02.2010 and the Liquidation Proceedings of the Club was also closed as per section 97 of the Assam Co-operative Societies Act vide Order No. CGDG/5/1012/44 dated 06.08.2012.
9. The Commissioner & Secretary, Sports & Youth Welfare Department issued the order under No. SYW73/2014/306 dated 27.05.2015, wherein it is mentioned that in compliance of the judgment and order dated 04.03.2015 passed by this Court in WP(C) 3218/2015 Page 4 of 16 W.A. No. 102/14, Sri Ranuj Barkotaky, ACS, Joint Director of Sports & Youth Welfare was appointed to act as In-charge of Assam Flying Club Limited with immediate effect as an interim arrangement till selection of the Honorary Secretary is made in due course of time or any other arrangement that may be made in the said regard. The said order was passed having the approval of the Hon'ble Chief Minister, Assam cum the President of Assam Flying Club. The said order is impugned in the present writ petition.
10. By order dated 01.06.2015 passed in this writ petition, there was a direction to maintain status-quo. The said interim order was vacated on 22.11.2016 in I.A. No. 2791/2015.
11. The learned Senior Counsel for the petitioners submit that neither the cancellation of the registration of the Co-operative Society, nor the formation of a new Assam Flying Club, under the Societies Registration Act are under challenge and therefore, this Court may not go in that aspect of the matter and confine the adjudication on the impugned order.
12. It is further submitted that the State Respondents had disputed the existence of the petitioner No.2 Society by terming it as fake, but no material disclosure has been made by producing any record to show that two co-operative Societies had its valid existence prior to its closure on 03.01.2014. It was argued that it was the stand of the State Respondents as well as that of Respondent No.5 that there are two Co- operative Societies, yet the official records are being withheld, which totally dislodges the defence of the respondents, making it unbelievable. The State Respondents was accused of double-speak. The State Respondents cannot disown the closing down of Assam Flying Club (Co-operative Society) as the meeting dated 03.01.2014, in which the said decision was taken was chaired by The Chief Minister of the State and attended, amongst others by the Commissioner & Secretary to the Govt. of Assam, Sports & Youth Welfare Department as well as the Registrar of Co-operative Society and it is further submitted these high officials of the State would not have attended the said meeting without such meeting being lawfully called and conducted. By referring to the minutes as well as the attendance sheet of the meeting (AR Dt.16.05.16; pp.35), it was submitted that the resolutions adopted in the said meeting was signed by the Chief Minister, Assam and no one can disown the meeting after looking at the attendance sheet of the WP(C) 3218/2015 Page 5 of 16 meeting. The conduct of the Commissioner & Secretary, Sports & Youth Welfare, who filed the Affidavit-in- Opposition on 06.04.2016 is doubted for his reference therein to the meeting of Assam Flying Club on 03.01.2014 as irregular and illegal and for his feigning ignorance of the new registration or new Bye Law of the Non- Govt. Society, and by terming the bona fide actions of the Petitioners by using the term "hoodwinking the government and the public", on the ground that he was very much present in the meeting dated 03.01.2014 and questioned their wisdom for attending the meeting of Assam Flying Club (Co-operative Society as it was then) in the first place without knowing which meeting he was attending. The correctness of the statements made in AR dt.18.07.16, specifically those made in para 4.1 thereof where it was stated that "the Commissioner & Secretary, Sports & Youth Welfare Deptt. never attended the meeting for and on behalf of the department" was attacked by stating that Assistant Director of Sports & Youth Welfare Deptt. could not have made such a statement on the basis of his personal knowledge, as per the verification made.
13. It was also submitted that the Deputy Secretary, Sports & Youth Welfare, by his letter No. SYW.21/97/Pt./214 dated 26.12.2013 (Annexure-16 of AR 16.05.16; pp.68) advised the Petitioners to examine whether for the sake of uniformity, the nomenclature of "Assam Flying Club" can be used everywhere instead of "Assam Flying Club Limited" by dropping the word "Ltd"., as such, it was because of the said letter that the petitioners had been using the nomenclature as advised by the government, for which the State Respondents cannot accuse the Petitioners of using the nomenclature of "Assam Flying Club Limited.
14. The learned Senior Counsel of the petitioner vehemently argued on the basis of the Enquiry Report. By referring to the letter No. SYW.21/97/Pt.457 dated 10.09.2015 (Annexure-23 of AR dt.16.05.16; pp.103), it was argued that by the said letter, the Joint Secretary to the Govt. of Assam, Sports & Youth Welfare, requested the Registrar of Co-operative Societies, Assam to restore the registration of Assam Flying Club again as a Co-operative Society and cancel its liquidation proceeding also to cause an enquiry and place before the Hon'ble Chief Minister, Assam. It was submitted that pursuant to the said letter, an enquiry was made and the Additional Registrar of Co- operative Societies, Assam had submitted his report vide letter No. Co.4/2013/109 dated 05.10.2015, wherein it was, inter-alia, stated that the authenticity of the Registration WP(C) 3218/2015 Page 6 of 16 Certificate as furnished by Director of Sports & Youth Welfare on 27.08.2013 could not be ascertained. No record of meetings as provided under section 32(5) of the Assam Co- operative Societies Act, 1949 and no record of audit as required by section 55 of the said Act (corresponding to section 81 of 2007 Act) were found in the Office of the Registrar of Co-operative Societies, Assam. The learned Senior Counsel further relied on the statements made in paragraph 25 of the said Enquiry report, where it is stated that as per the Report of Late Mridul Kr. Sarma Boruah, Jr. Inspector of Co-operative Societies, Kamrup, the registration No. of Assam Flying Club Samabai Samiti Limited was CGDO 10/73, but as per unauthentic certificate of registration of Assam Flying Club as provided by the Director of Sports & Youth Welfare, the Registration No. is R.1/57-58 of 1958.
15. The letter dated 20.02.2015 (Annexure-14 of writ petition) was read to show that the General Assembly and Governing Body of Assam Flying Club, which is a registered Society under the Society Registration Act, 1860 would control the function of Assam Flying Club. By referring to the documents annexed to the AR dt.16.05.16, it is argued that both the Government had sanctioned Rs.50.00 Lakh and a further sum of Rs. 8,52,576/- as Grant-In- Aid to the Assam Flying Club, but the said money was returned. The AR dt.16.05.16 was referred to show that the petitioner No.1 was footing the expenses of Assam Flying Club to the extent of Rs. 23,43,000/-.
16. Other points as mentioned in the writ petition, affidavits- in- reply, additional affidavit, etc., filed by the petitioner were also pressed. It is not deemed relevant to enumerate all the arguments made by the learned Senior Counsel, in order to maintain brevity.
17. In view of above, it is submitted that the present challenge is only limited to govt. interference in the affairs of the Assam Flying Club, which is on and from 06.03.2014, registered under the Societies Registration Act, 1860, which does not empower the Govt. to appoint it official as the 'In-Charge'. Hence, it was prayed for interference in the matter in terms of the prayers made in the writ petition.
Submissions on behalf of the State Respondents No.1 to 4:
WP(C) 3218/2015 Page 7 of 1618. The learned Senior Govt. Advocate, assisted by Mr. S.S. Roy and Mrs. J.
Dutta, appeared and argued for the State Respondents No.1 to 4.
19. The emphasis of his argument was that the Assam Flying Club (State Level Co-operative Society) is a government registered society formed under the Assam Co-operative Societies Act, 1949. It was registered in Shillong in the year 1958 and Govt. had some control over its affairs as per the clauses contained in its Byelaws. The said club had nothing to do with another club within similar name of Assam Flying Club Limited, which was a Primary Level Co-operative Society, also registered under the Assam Co-operative Societies Act, 1949, bearing No. CGDO.10/73, which was purportedly closed down vide Resolution adopted on 03.01.2014. He submitted that it was strange that the Assam Flying Club Samabai Samiti, i.e. Primary Level Co-operative Society, which was already de-registered on 10.02.2010 could be shown to be functioning and again resolved to be closed and again re-closed on 05.03.2014.
20. It was submitted that the Governing Body of the Assam Flying Club (State Level Co-operative Society) was reconstituted on 19.05.2007. It was further argued that on 03.09.2013, an advertisement dated 03.09.2013 was published in newspapers by the Deputy Director of Sports & Youth Welfare, Assam, seeking applications for the post of Honorary Secretary of Assam Flying Club, which was referable to the Assam Flying Club (i.e. State Level Co-operative Society), pursuant to which the Petitioner No.1 was appointed on 07.10.2013. Thereafter, a letter under No. SYW.21/97/Pt./214 dated 26.12.2013 (Annexure-16 to AR dt.16.05.16; pp-68) was issued by the Deputy Secretary to the Govt. of Assam, Sports & Youth Welfare to the Petitioner No.1 to amend the Memorandum of Association of the defunct Assam Flying Club immediately to bring it back to existence, and it was for that reason that the meeting was called and a mischief was created by the Petitioner No.1 to take resolution to close another defunct Primary Level Co-operative Society and form a new society under the same name by registering it under Societies Registration Act. It was earnestly asserted that the State Level Co- operative Society under the name of Assam Flying Club, formed in the year 1957-58 still existed and it was funded from time to time under Plan as well as Non- Plan expenditure by the State, for which the learned Senior Govt. Advocate referred to the details of Grant-In- Aid by the State to the Assam Flying Club since 1991-92 till 2013-14 amounting to Rs.2,42,38,200/- which is filed as Annexure-B to AO dt. 06.04.2016. By WP(C) 3218/2015 Page 8 of 16 referring to resolutions adopted in the meeting dated 03.01.2014, it was argued that the Assam Flying Club (i.e. Co-operative Society) had land measuring 6 bigha 10 lechas land in the name of a private person (it is 6 Bigha-12 Lechas as per jamabandi at pp.43-44 of RA dt.17.01.17), a hangar inside airport, and it also has a Cessna 152 Aircraft, as well as other assets. It is argued that while a Primary Level Co-operative Society of same name was closed, the petitioner No.1 is attempting to project as of the State Level Co- operative Society having a same name was closed and in the process these public property is sought to be usurped by the petitioners.
21. It was further argued that by using the name of the Hon'ble Chief Minister, the petitioners hurriedly registered a new Society in the name of Assam Flying Club under the Societies Registration Act, 1860. However, the said society was registered on mis-representation on 05.03.2014, because as per its Memorandum of Association, the said Society was formed on 06.03.2014, as such, on the date of registration, such a society was not even born.
22. It was submitted that this court by judgment and order dated 04.03.2015, passed in W.A. No. 102/2014, quashed the appointment of the petitioner No.1 herein as the Secretary of Assam Flying Club, granting liberty to hold fresh selection within a period of 4 months and in the interregnum, liberty was granted to the State Respondents to make temporary arrangements. Therefore, it was under the said liberty that steps was taken through the impugned order dated 27.05.2015 to appoint the Joint Secretary to the Govt. of Assam, Sports & Youth Welfare to act as the In-charge. Due to challenge of such interim appointment made in the present writ petition, that the matter has been kept hanging. It is further urged that during the proceedings of W.P.(C) No. 6809/2013 as well as W.A. No. 102/2014, the change of the character of Assam Flying Club from either State Level or Primary Level Co-operative Society to Society registered under Societies Registration Act, 1860 was never urged and it was agitated for the first time in the proceedings of Review Petition No. 72/2015, because of which the Hon'ble Division Bench of this Court allowed the parties to pursue this writ petition.
23. The learned Senior Govt. Advocate for the respondents No.1 to 4 had meticulously referred to the statements and documents contained in their AO dt.06.04.16, RA dt.18.07.16, and RA dt.17.01.17. It is not deemed relevant to WP(C) 3218/2015 Page 9 of 16 enumerate all the arguments made by the learned Senior Govt. Advocate for Respondents No.1 to 5 in order to maintain brevity.
Submissions for and on behalf of the Respondent No.5:
24. The learned Counsel for the Respondent No.5 adopted the argument advanced by the learned Senior Govt. Advocate for the State Respondents.
25. He referred to the Resolution adopted on 27.07.1978, as appears in the Bye Laws of Assam Flying Club Limited and argues that as per the amended Byelaws of Assam Flying Club (State Level Co-operative Society), the President of Assam Flying Club was to be the Minister of Sports & Youth Welfare or any other Minister under whom the Portfolio of Assam Flying Club comes. It was argued that a Primary Level Co-operative Societies bearing Registration No. CGDO.10/73 was formed in the year 1973, which was de-registered on 10.02.2012. It was argued that the petitioner was appointed as the Secretary of State Level Co-operative Society, but taking advantage of his knowledge of a defunct Primary Level Co-operative Society of the similar nomenclature, he committed manipulation in the meeting held on 03.01.2014, so as to induce all invitees to believe that they were closing the Primary Level Co-operative Society and starting a new Society. Upon reading the various resolutions adopted in the said meeting, it was never highlighted that there were three similar named Assam Flying Club and the said fact was never brought to the notice of this court during the course of the proceedings of W.P.(C) No. 6809/2013 as well as W.A. No. 102/2014. Only when the result of W.A. No. 102/14 came adverse to the petitioners herein, that the existence of these three similarly named societies were exposed in course of the proceedings of R.A. No. 72/2015.
26. It was highlighted that from the sequence of events, it would be evident that as on 03.01.2014, even the Chief Minister of the State and Commissioner & Secretary of the Govt. Of Assam, Sports & Youth Welfare Department were both not aware that in guise of making Primary Level Co-operative Society defunct, the Petitioners would be taking over Govt. assets. The same was exposed by the respondent No.5, after he got himself impleaded in the proceedings of the present writ petition.
WP(C) 3218/2015 Page 10 of 1627. It was further argued that although the appointment of the petitioner No.1 as the Honorary Secretary of Assam Flying Club was challenged by the Respondent No.5 before this Court by filing W.P.(C) No. 6809/2013 and also in W.A. No. 102/2014, the Petitioners by not impleading the Respondent N.5 herein as one of the respondents filed this present writ petition and obtained an ex-parte interim order dated 01.06.2015 and 04.08.2015. Later on, the respondent No.5 got himself impleaded in the present proceedings and filed I.A. No. 2791/15, wherein by order dated 22.11.2016, the interim order was modified, and liberty was granted to the State Respondents to replace Sri Ranuj Barkotaky, ACS., Joint Director, Sports & Youth Welfare by a new incumbent, ifs he is no longer holding the said office. Pursuant to the said order, the Joint Secretary to the Govt. of Assam, Sports & Youth Welfare, vide letter No. SYN.73/2014/749 dated 29.11.2016 (Annexure-21 series to RA dt.17.01.17), directed Sri Ranuj Barkotaky, ACS., Joint Director, Sports & Youth Welfare to take over the charge of the Assam Flying Club Limited. The above referred order dated 22.11.2016 passed in I.A. No. 2791/15 was assailed in appeal and this Court by order dated 05.12.2016, passed in W.A. No. 408/16, declined to interfere with the said order.
28. It was also submitted that the after taking over the charge of the Assam Flying Club Limited (State Level Co-operative Society), by letter No. AFC/2/2016/12 dated 19.12.2016 (part of Annexure-21 Series appended to RA dt.17.01.17), directed the Petitioner No.1 to hand over all the assets of the Assam Flying Club Ltd. immediately as per list (Annexure-I to VII) enclosed. It is further argued that the 6 Bigha 12 lechas land, which was earlier in a private name, had already been illegally mutated in the name of Assam Flying Club by the Petitioners.
29. It was also pointed out that as per the bye laws of Assam Flying Club (Society registered under Societies Registration Act, 1860), the Chairman or President of the Assam Flying Club shall be Hon'ble Chief Minister (by name given) and the Secretary would be from the College of Aeronautical Engineering (Clause-17 thereof). The memo of Association of Assam Flying Club was read out to show that the said Club was established under the Societies Registration Act. The bye laws of the Assam Flying Club along with Clause 17 thereof was read to project that the Secretary of the Club shall be from the College of Aeronautical Engineering, who took whole initiative of restarting of Assam Flying Club in the year 2013. It is stated therein that this Club was defunct for WP(C) 3218/2015 Page 11 of 16 more than 2 decade and Government constituted Governing Body decided in the year 2011 to close Assam Flying Club permanently and merge with NEC proposed Aviation Manpower Training Institute at Lilabari. By showing that, it was argued that if the order impugned in the writ petition is interfered with, all public assets like land, Cessna Aircraft and all other assets as mentioned in letter No. AFC/2/2016/12 dated 19.12.2016 (part of Annexure-21 Series appended to RA dt.17.01.17) would be enjoyed by the Petitioners as well as the College of Aeronautical Engineering for all practical purpose free at the cost of public exchequer.
30. Other points as mentioned in the AO dt.15.02.16, AR dt.16.05.16, RA dt.17.06.15, and RA dt.17.01.17 were argued. It is not deemed relevant to enumerate all the arguments made by the learned Counsel for the Respondent No.5 in order to maintain brevity.
Finding and decision of the Court :
31. The petitioner No.1 claims that his initial appointment as Hony. Secretary was made on the basis of a public advertisement, which is not annexed to the writ petition. This means that one Co-operative Society existed at the time when the Petitioner No.1 was appointed as its General Secretary. It is also evident from the documents produced by the Petitioners that the Primary Level Co-operative Society by the name of Assam Flying Club was closed being defunct on 10.02.2010. Therefore, it makes no sense for the authorities to close the same society for the second time on 04.03.2014. The categorical stand of the State Respondents is that under the Byelaws of Assam Flying Club (State Level Co-operative Society), they had the power to appoint In- Charge, which appears to be borne by the records.
32. It is seen that the State Respondents by a subsequent order vide letter No. SYN.73/2014/749 dated 29.11.2016 (Annexure-21 series to RA dt.17.01.17), issued by the Joint Secretary to the Govt. of Assam, Sports & Youth Welfare, directed Sri Ranuj Barkotaky, ACS., Joint Director, Sports & Youth Welfare to take over the charge of the Assam Flying Club Limited. By use of the suffix "Limited", it is presumed that the said authority is referring to the State Level Co-operative Society established in the year 1957-1958. If that be so, the Petitioners cannot have any lawful or bona fide grievance if WP(C) 3218/2015 Page 12 of 16 the State Respondents have appointed an In-Charge of the Assam Flying Club Limited, which is an distinct and different organization than Assam Flying Club of the petitioners, which is a Society registered under Societies Registration Act, 1860.
33. Therefore, in essence, the Government has not appointed anyone as In- Charge of the Assam Flying Club, i.e., the Society registered under the Societies Registration Act.
34. There appears to be no document on record showing in which manner public property like 6 Bigha 12 Lechas land, one Cessna 152 Aircraft, and other assets mentioned in letter No. AFC/2/2016/12 dated 19.12.2016 (part of Annexure-21 Series appended to RA dt.17.01.17) were transferred to the Petitioner No.2, i.e. Assam Flying Club (registered under Societies Registration Act, 1860). Hence, this court finds no infirmity in issuing the impugned order No. SYW.73/2014/306 dated 27.05.2015, appointing the Joint Director of Sports & Youth Welfare, Govt. of Assam as the In-charge of Assam Flying Club Limited. It is the bounden and constitutional duty of the State Government to take control of the assets and properties created out of money given under Grants-In- Aid, Plan & Non- Plan expenditure from 1958 till date. No documents have been filed by the petitioners to show that the Hangar for parking aircraft inside Lokapriya Gopinath Bordoloi International Airport ("LGBI Airport" for short) was allotted to the Petitioners. The said Hangars are in existence since long ago and, as such, from the absence of documents to the contrary, it is presumed under section 114 Explanation
(g) of the Evidence Act, 1872 that documents, if produced by the petitioners, would not have favoured them. It is presumed that the Hangar inside the said LGBI Airport is of the Assam Flying Club Limited (State Level Co-operative Society). Airport is a highly secured area and no documents have been filed to show that prior consent of the Airports Authority of India or from the Director General of Civil Aviation was taken by the Petitioners to have their address at LGBI Airport, Borjhar, Guwahati-15.
35. It is the admitted case of the petitioners, supported by their reliance on resolutions adopted in the meeting dated 03.01.2014 that the Assam Flying Club (i.e. Co-operative Society) had land measuring 6 bigha 12 lechas land in the name of a private person, a hangar inside airport, it has a Cessna 152 Aircraft, as well as other assets. These assets are public assets and properties, having purchased with public WP(C) 3218/2015 Page 13 of 16 money received by the club in form of grants-in-aid. It is not the case of the petitioners that the Petitioner No.2 Society procured the said assets from its own funds, as such, they cannot be entitled to hold over any of such public property without the same being legally handed over by the State. The State Respondents have projected through their list of grants-in- aid annexed to their affidavit in opposition that the Govt. of Assam has been funding the Assam Flying Club (i.e. State Level Co-operative Society). Thus, it is presumed that the assets and properties of the said State Level Co-operative Society were procured with public funds for the same society. The State of Assam, being the financer by granting "grants-in- aid" and other money under "Plan and Non-Plan Expenditure", is expected to now where the public funds are going and to whom they were giving-out money.
36. Resultantly, this court is of the opinion that the writ petition is without any merit. The Petitioner No.2 organisation, of which the Petitioner No.1 is the Hony. Secretary, is distinctly different from the Assam Flying Club Limited. The impugned order under No. SYW.73/2014/306 dated 27.05.2015, appointing the Joint Director of Sports & Youth Welfare, Govt. of Assam as the In-charge of Assam Flying Club Limited was issued not in respect of the Petitioner No.2 Society, but in respect of Assam Flying Club Limited (State Level Co-operative Society). Hence, in any view of the matter, the said order has not and cannot prejudice the writ petitioners, who are claiming to have their Society registered on 06.03.2014 under the Societies Registration Act. Hence, for the reasons as indicated above, the writ petition, therefore, stands dismissed. There shall be no order as to costs.
EPILOGUE:
37. Having dismissed the writ petition, this court is of the further opinion that the manner in which the State Respondents are dealing with public property like 6 Bigha 12 Lecha land, a Cessna Aircraft, Hangar inside LGBI Airport, and other assets, requires an enquiry.
38. As per documents filed by the State Respondents, a sum of Rs.2,42,38,200/- was granted to the Assam Flying Club as per the details of Grant-In- Aid by the State to the Assam Flying Club since 1991-92 till 2013-14 (as per Annexure-B WP(C) 3218/2015 Page 14 of 16 to AO dt. 06.04.2016). However, from the letter No. CO.4/2013/67 dated 13.04.2015 (Annexure-7 of AR dt.14.03.16), it appears that the only assets that the Assam Flying Club (State Level Co-operative Society of 1958), are having as on the date of the said enquiry was (i) Table- 10, (ii) Chair -35, (iii) Almirah- 10, (iv) Fan-7, (v) Tube-light-6,
(vi) Refrigerator - 1, (vii) Computer-2, (viii) Wooden Rack-4, (ix) Type writer- 4, (x) Air- conditioner-3, (xi) Television- 1, (xii) Small Sheet Almirah-1, (xiii) DVD, (xiv) Notice Board-1. Thus it appears that a huge sum of money given by the Govt. of Assam as Plan and Non- Plan expenditure including the Cessna Aircraft, etc., land and Hangar inside LGBI Airport at Guwahati, have been lost or squandered away without maintaining any accounts, and/or given away to the newly created Assam Flying Club (registered under Societies Registration Act, 1860) without any documentation. The enquiry report bearing signature of Dilip Kumar Boro, Deepak Mandal and Prasenjit Choudhury, all Senior Inspectors/ Auditor of Co-operative Societies, HO, Assam [Appendix to Annexure-4 (pp.43-45) of AR dt.14.03.16], leaves no doubt that at least on the date of the said report, the Registration Certificate No. R.1/57-58 of 1958 dated 01.05.1957 did exist and a copy thereof formed a part of the said report. Therefore, it is strange that in the subsequent enquiry report appended to letter No. CO.4/2013/109 dated 05.10.2015, the Additional Registrar of Co-operative Societies (Gen), Assam, has seriously doubted the existence and registration of Assam Flying Club (State Level Co-operative Society) bearing Regd. No. 1/57-58. Thus, all those who are supposed to be at the helm of the affairs of their respective departments, are found to be waiting, wanting and obliging to turn over with any tide or wind that comes by. Hence, various authorities under the State Respondents are appearing to be giving a totally different picture, one stand being contrary to the stand of another organ of the State. The high functionaries of the State are running the affairs of the State as a 'Laissez Faire', meaning "the policy of leaving things to take their own course without interfering". This appears to be a glaring instance of apathy of the high officials of State as to their accountability with regard to public property, assets and money in form of land, aircraft, public money and aircraft Hanger inside the Airport, all of which were created by using huge public funds of the State. Therefore, this court is of the opinion that in the interest of public exchequer and to fix accountability, the entire matter should be appropriately enquired either by the State Government at its highest level or by filing appropriate complaint before the learned Upa-Lokayukta, Assam, as they may so desire. This is left at the wisdom of the WP(C) 3218/2015 Page 15 of 16 Government. Hence, the Registry shall send a copy of this order to the Chief Secretary to the Government of Assam.
JUDGE Mkumar WP(C) 3218/2015 Page 16 of 16