WP(C) 3551/2009 BEFORE THE HON’BLE MR. JUSTICE T.NK SINGH Heard Mr. MA Sheikh, learned counsel appearing for the petitioner- Socie ty. [2] By this writ petition, the petitioner- Society is assailing the order/letter of the District Magistrate, Lakhimpur, North Lakhimpur being No. LD C/1/2003/6 dated 13.3.2003 asking the Director of the petitioner- Society to sto p all functionings of the PSES/PSEC/USEC at North Lakhimpur forthwith until furt her orders alleging that the petitioner-society is found to have been a cheatin g Agent/organisation. [3] Serious allegations had been made by the petitioner- Society in the present writ petition against the respondent No.2, District Magistrate, Lakh impur District, North Lakhimpur, the respondent No.3, Sri Girish Ch. Sarmah, Ext ra Assistant Commissioner in the office of the District Magistrate, Lakhimpur Di strict, the respondent No.4, the All Assam Unemployed Assn., having its HQs at North Lakhimpur Town and the respondent No.5, the Lakhimpur District Unemployed Assn, having its HQs at North Lakhimpur Town. The respondents- 1, 2, 3, 6, 7 and 8 are represented by the lear ned Government Advocate Assam. [4] By an order of this Court dated 16.6.2010 petitioner-Society had been allowed to cause service of notice to the respondents- 4 and 5 by substitu ted service through publication in the Newspaper, i.e. local daily newspaper in vernacular(Assamese) having wide circulation in the North Lakhimpur Town. Pursua nt to the said order of this Court dated 16.6.10, petitioner-society published s ubstituted service to the respondents- 4 and 5 in the local daily, Dainik Janam bhumi dated 10.7.2010. This Court by orders dated 2.8.10 and 23.8.10 clearly or dered that service of notice to the respondent Nos- 4 and 5 shall deem to have been served properly. This Court is not getting any assistance from the learned G.A., who represents the respondent Nos- 1, 2, 3, 6 , 7 and 8 inasmuch as the l earned concerned G.A., in spite of having knowledge of the date fixed for hearin g of the present petition and the date for continuation of hearing of the presen t petition, did not appear before this Court nor the respondents-1, 2, 3, 6 , 7 and 8 filed their affidavit in-opposition in the present writ petition. The resp ondents-4 and 5 also did not file their affidavit in-opposition in the present w rit petition. [5] In this peculiar circumstance, this Court has to dispose of the writ petition on the basis of the case of the petitioner-society pleaded in the writ petition and also materials available on record. [6] Short factual matrix, sufficient for deciding the present writ p etition is noted: The petitioner-Society is a Society registered under the Socie ties Registration Act and the Certificate of Registration under Memo No. 41(S)20 01-2002/336 dated 21.6.2001 was issued to the petitioner- Society by the Registr ar of Societies, Assam. Before registration of the petitioner-society by the Reg istrar of Societies, necessary report was called for from the Dy. Commissioner, Lakhimpur for submitting report. The Dy. Commissioner, Lakhimpur conducted enqui ry through the Circle Officer, North Lakhimpur Revenue Circle and after receivin g enquiry report from the Circle Officer the Addl. Dy. Commissioner (Dev), Lakhi mpur by his letter dated 8.6.01 submitted the report along with the Memorandum o f the Association of the petitioner-Society to the Registrar of Societies and th ereafter the said Certificate for registration of the petitioner-Society was iss ued. [7] The present petitioner-society is also affiliated to the Nehru Y uva Kendra Lakhimpur Municipal Board and for that affiliation certificate dated 23.7.01 was also issued to the petitioner- society. After registration, the peti tioner- society obtained the trade licence dated 27.7.01 from the North Lakhimpu r Municipal Board. [8] It is stated that the petitioner-society had decided to change t he HQ of the business to Kamalabari Path, Uttar, Lakhimpur from January, 2001. A two-storied R.C.C. buildings having 8 rooms were taken on rent @ Rs.2200/- per month. Later on, the petitioner-society was registered under the present name ha ving its HQs at Kamalabari, P.O. Lakhimpur, District Lakhimpur, Assam. After re gistration all the properties of the individual firms of the Director of petiti oner-society were vested in the Governing Body of the petitioner-society and the liabilities of the said individual firms of the Director of the petitioner-Soci ety were also shifted to the petitioner-Society. [9] It is stated that the petitioner-society was in occupation of th e huge area of land and for cultivation of the said land, the petitioner-Society decided to engage 2000 unemployed youths for general cultivation as well as for office staff for the post of LDA/Typist, boat man and representatives to sell t he product of the firm. Accordingly, the petitioner-Society advertised for the s aid posts in the local daily inviting applications from the intending candidates and each application was to accompany with Indian Postal Order ( I.P.O.) of Rs. 30/- to be drawn in the name of the petitioner-Society. The petitioner-Society r eceived applications from 27,333 persons and total amount of money drawn in the name of the petitioner- society in the form of I.P.O. was Rs.8,19,990/-(Rupees E ight Lakhs Nineteen Thousand Nine Hundred Ninety). [10] The respondents-4 and 5 are the Society registered under the Soc ieties Registration Act, 1860. In para 20 of the writ petition, petitioner-Socie ty specifically pleaded that the respondents-4 and 5 started illegal demand for money from the petitioner- society and initially petitioner-Society paid an amou nt of Rs.3000/- as donation to them, but after receiving the said amount the res pondents-4 and 5 became greedy and on 8.7.01 six members of the respondent Nos-4 and 5 demanded Rs.20,000/- in the names of the respondent Societies, i.e. respo ndent No.4 and 5. Petitioner -society had refused to pay the said amount; for th at illegal demand made by the respondents-4 and 5, the Director of the petitione r- Society filed an FIR dated 9.7.01 in North Lakhimpur P.S. against the said 6 persons and registered as North Lakhimpur P.S. Case No.573/01 u/s 387/34 IPC whi ch corresponds GR Case No.874 of 2001. After registration of the said case, some members of the respondents- 4 and 5 were arrested, but they were allowed to go on bail by the concerned Court. [11] It is stated that on 12.8.01 at about 2 pm, some members of the respondents- 4 and 5 numbering about 20 along with two persons came to the offic e of the petitioner- Society and by force they took away all the documents of th e Society including Cash Books, Stock Register, Ledger Books, Receipt Books, Cas h Memo Books, Bank Pass Books of 2 banks- namely Allahabad Banks, N.L. Branch an d Suwansiri Goalia Bank and one Postal Pass Book of North Lakhimpur Post Office, Copy of Memorandum of Association, copy of the Constitution of the Society, nu mber of files of the petitioner-Society and cash amount of Rs.83,520/-, valuable security ( I.P.Os. which were submitted by the intending candidates who applied for the said posts as per the advertisement stated hereinabove ) amounting to R s. 8,19,990/-) [12] It is stated that one of the two persons who accompanied the mem ber of the respondents-4 and 5 society even disclosed his identity that he is Gi rish Ch. Sarmah, respondent No.3, Extra Assistant Commissioner in the office of the District Magistrate, Lakhimpur District. For that incident, the Director of the petitioner-society filed a complaint against the members of the respondent Nos-4 and 5 to the District Magistrate. The petitioner -society learnt that the District Magistrate, Lakhimpur appointed the respondent No.3 as enquiry officer for conducting enquiry against the petitioner-society without informing the pet itioner-society. The petitioner-society requested the District Magistrate, Lakhi mpur and also to the Enquiry Officer to supply copy of the complaint lodged agai nst the petitioner society, but the respondents-2 and 3 refused to supply copy o f the complaint alleged to have been made against the petitioner-society. Over a nd above, Director of the petitioner- society also requested the respondent No.3 to furnish copy of the memo for seizing the said documents of the petitioner-s ociety on 12.5.01, but the respondent Nos-2 and 3 refused to furnish copy of the seizure memo. It is also stated that categorically in the present writ petition that the respondent Nos-2 and 3 did not even prepare the seizure memo at the ti me of forcibly taking away the documents of the petitioner-society on 12.5.01. [13] Director of petitioner-society went to the North Lakhimpur to fi le an Ezahar (FIR) for the said incident; and met one Konwar, Police officer of that Police Station and handed over the FIR to him. Thereafter, the police offic er had a talk with some members of the respondents-4 and 5 and got angry to the Director of the petitioner-society. The said police officer even torn the said F IR filed by the petitioner -society and sternly warned the Director of the petit ioner- society not to visit the police Station again. [14] The Director of the petitioner-society also went to the office o f the District Magistrate to file compliant against the police officer. As Distr ict Magistrate was not in his office, he handed over the complaint to the P.S. t o the District Magistrate. After three days, the Director of the petitioner-soci ety met the District Magistrate and asked him as to whether he received the said complaint filed by the petitioner-society to which the District Magistrate repl ied in positive. [15] In para 27 of the writ petition the petitioner-society categoric ally pleaded that the Director of the petitioner- society met the Enquiry Office r regarding the alleged enquiry against the petitioner -society. The Enquiry off icer asked the Director of the petitioner- society to arrange Rs. 5 lakhs and me et him. The Director of the petitioner- society expressed his inability to arran ge huge amount. After some days, the Director of the petitioner- society again m et the Enquiry Officer and requested to allow the functioning of the Society. [16] On 17.8.10 Director and Manager of the petitioner- Society went to Gauhati for medical check up and at the time of leaving Gauhati the key of t he office of the petitioner-society was handed over to Jibon Bora, Chawkidar of the Society. After returning from Gauhati on 19.8.01 in the morning the Director of the petitioner-society found the office of the Society sealed by the Enquiry Officer and also the police was searching for the Director and the Manager of t he petitioner-society. Subsequently, the Manager of the Society and the Director of the petitioner-society surrendered before the Court in connection with North Lakhimpur PS Case No. 748 of 2001 which was filed by Smt. Rijumoni Saikia, d/o Sri Mohi Kanta Saikia, village No.2 Kowadanga, P.S. North Lakhimpur P.S. The I.O . submitted charge sheet for that case and the Director of the petitioner-societ y is now facing trial. [17] It is stated that on 13.3.03 the District Magistrate, North Lak himpur impugned order to the petitioner-society to stop all the functioning of P SES/PSEC/USEC at North Lakhimpur forthwith until further orders alleging that th e petitioner-society is found to be a cheating Agent/Organisation. It is the cas e of the petitioner-society that no opportunity of being heard was made availabl e to the petitioner society before issuing the said impugned order dated 13.3.03 nor copy of the enquiry report alleged to have been submitted by the Enquiry of ficer, respondent No.3, furnished to the petitioner-society. It is also stated that the petitioner- had filed several representations to different authorities including local MLA, Hon’ble Minister in-charge of Industries & Public Sector Un dertakings, Hon’ble Chief Minister of Assam, but none of the authorities paid heed to the said representations filed by the petitioner- socie ty. Hence, the present writ petition. [18] As stated above, none of the respondents filed affidavit in-oppo sition controverting the serious allegations and assertions made by the petition er-society in the present writ petition. [19] Mr. MA Sheikh, learned counsel for the petitioner- society, rely ing heavily on the decision of the Apex Court in Smt. Naseem Bano vs. State of U.P. and others reported in AIR 1993 SC 2592, strenuously contends that since th e averments made in the writ petition are not controverted by the respondents, H igh Court should proceed on the basis that the averments had been admitted by th e respondents. The Apex Court is of the similar view in Bir Singh Chauhan v. Sta te of Haryana : (1997) 6 SCC 282. This being the settled position of law, this C ourt has no alternative except to proceed with the writ petition on the basis th at the averments made by the petitioner in the present writ petition had been ad mitted by the respondents. [20] For the reasons discussed above, this Court has no alternative e xcept to accept the case of the writ petitioner-society that the impugned order was issued in clear violation of the principle of natural justice. Accordingly, the impugned order dated 13.3.03 is hereby set aside and quashed. [21] In the given case, this Court is also of the opinion that an enq uiry is required to be made by the officer not below the rank of Secretary as to whether the serious allegations made by the petitioner society in the present w rit petition against the respondents- 2,3, 4 and 5 are correct or not. The said enquiry should be conducted by the Secretary, Home Department Govt. of Assam by giving sufficient opportunity to both the parties to put up their case. In case the serious allegations and assertions made by the petitioner hereinabove agains t the respondents-2, 3, 4 and 5 are correct, necessary appropriate follow up act ion should be taken up by the concerned authority of the Government of Assam. Th e respondents- 2 and 3 are directed to remove the seal put on the door of the pe titioner- society in presence of the Director of the petitioner-society and the officer in-charge of North Lakhimpur District, within one week from the date of receipt of certified copy of this judgment and order. Interim order dated 31.08. 2009 passed in the present writ petition is made absolute. The petitioner-societ y is directed to approach the Secretary/Commissioner/Principal Secretary, Home D epartment, Govt. of Assam, Respondents-2 and 3 with a copy of the writ petition and certified copy of this order for compliance. It is made clear that enquiry s hould be completed by the authority indicated above within 4(four) months from t he date of receipt of this order. With the above observation and direction, this writ petition is disposed of.