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Fulertal , District-Cachar, Assam. 2. Mr. Ngur Sungthang, S

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Fulertal , District-Cachar, Assam. 2. Mr. Ngur Sungthang, S IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland ,Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) W.P(C)No.1656 of 2011 1. Mr. Alimei Rongmei Son of late Pousing Rongmei R/O Vill & PO- Fulertal , District-Cachar, Assam. 2. Mr. Ngur Sungthang, S/O Late Ngur Khop R/O Vill-Hmar Khawlien PO- Fulertal , District-Cachar, Silchar , Assam 3. Mr. Warles Suchiang S/O Siang Lamare R/O Vill-Pedlapumji District- Cachar, Assam. 4. Anania Shchiang S/O Andev Suchiang R/O Vill & P.O- Matinagar, District- Cachar, Assam. 5. Jerom Khawjal S/O J. Thangthuom R/O Vill- Lower Loban Khal District-Cachar, Assam. 6. Mr. R.Liena Chiru S/O Late Tungpa Chiru R/O Vill-Chiropunji District-Cachar, Assam. 7. Mr. L. Lungawi Hrangkhol S/O late Thanga Hrangkhol R/O vill-Labankhal District- Cachar, Assam. 8. Mr. Babu Rongmei S/O Late Gaiphun Rongmei R/O Vill-Ujan Tarapur District- Cachar, Assam. 9. Mr. Liena Vaiphei S/O late Sema Vaiphei R/O Vill-Chandi Khal District- Cachar, Assam. 10. Mr. Loya Hmar S/O Late Lalkar Hmar R/O Vill- Baroidisha District- Cachar, Assam. 11. Mr. Thang Nangul S/O Late Lalthangvul R.O vill & PO- Lover Powa District- Karimganj, Assam. 12. Mr. Lalmohan Chorai S/O late Milon Chorai R/O Vill-Gopinathpur, District-Karimganj, Assam. 13. Mr. Zalian Thanga Mizo S/O Late Lalchandama Mizo R/O Vill-Karot Punji District- Hailakandi, Assam. ….Petitioners -Versus- 1. The State of Assam , Through the Commissioner & Secretary To the Government of Assam, Welfare of Plain Tribes and backward classes Department, Dispur, Guwahati-6. 2. The Commissioner and Secretary, Planning and Development, Government Of Assam , Dispur, Guwahati-6. 3. The Joint Secretary, Welfare Plain Tribes and backward classes Department, Dispur, Guwahati-6. 4. The Deputy Secretary, Welfare Plain Tribes and backward Classes Department, Dispur, Guwahati-6. 5. The Director, Welfare Plain Tribes and backward Classes Department, Dispur, Guwahati-6. 6. The Deputy Commissioner, Cachar, Silchar , Assam . 7. The Additional Deputy Commissioner, Cachar, Assam. ….Respondents 8. Mr. Lalthomilien Neitham R/O Lakhipur Cachar , Assam . 9. Mr. Lientho Hmar R/O Lakhipur Cachar , Assam . 10. Mr. T. Sangkhum, R/O Lakhipur Cachar , Assam . 11. Mr.Shillongthang R/O Lakhipur Cachar , Assam . 12. Mr. V.L. Siema Saihriam R/ONoxaltilla, Cachar , Assam . 13. Mr.Wellington Khongwang, R/O Katakhal, Cachar , Assam . 14. Mr. Sebastine Pakyntein R/O Kachukhal, Borokhaja, Cachar, Assam. 15. Mr. Bison Khasia R/O Lala, 16. Mr. Taw Potham, R/O Mathurapur, Cachar , Assam 17. Mr. Jamumpow Kabui R.O Ward No.1, Hailakandi. 18. Mrs. Chandni Dahengmei R/O Uttarkreshnapur, PT-II Cachar, Assam. 19. Mr. Kachekleck Reami, R/O Meherpur, Cachar. 20. Smti Ubati Rian R/O Katlicherra, Hailakandi. 21. Smti Jonhy Halam, R/O Patharkandi, Karimganj. 22. Smti Bandana Riang, R/O Katlicherra, Hailakandi. 23. Mr. Simeon Durong, R/O Katigorah (Malidhar), Cachar, 24. Mr. Milon Chorai R/O Cachar , Assam , 25. Mr. Lumpu Kuki, R/O Ngente, Kumarcherra, Cachar, Assam. …Proforma Respondents. PRESENT THE HON’BLE MR. JUSTICE P.K.MUSAHARY For the petitioner : Mr.P. K.Roychoudhury, Advocate Mr. M.Sarma,Advocate Mr. Aslam Khan, Advocate Mr. N.G.Kundu, Advocate For the State respon- : Mr. B J Talukdar, Govt. Advocate Dents For the Private Respon- : Mr. S.S.Dey, Ms.R.Rongmei, dents No.8 to 25 Ms. K.L.R.Yanthan, Advocates Date of hearing : 26.05.2011 Date of judgment : 19.07.2011 JUDGMENT AND ORDER(CAV) There are some indigenous Hills Tribes known as Hmar, Kuki, Mizo, Khasia, Riang, Naga, Paite, Simte, Vaiphei, Gangte, Chakma, Karbi, Hrangkhol and Chiru living in the districts of Cachar, Karimganj and Hailakandi of Barak Velley in Assam , who are backward in all spheres. These people had been agitating for quite some time demanding redressal of their grievances which culminated into signing of a Memorandum of Settlement on 18.3.1996 between the President of Cachar Hill People Federation and Deputy Secretary to the Government of Assam, W.P.T.& B.C.Department in presence of Chief Minister of Assam . The said Memorandum of Agreement primarily provides for constitution of a council known as Barak Valley(Hill Tribes) Development Council which would consist of 5(five) members elected by the electors of ‘tribal settlement jhum permission areas’ and two other members to be nominated by the Government to give representation to groups/communities which are not otherwise represented in the council. The terms of the council shall be five years and the Government of Assam shall constitute an Interim Council by nomination which shall continue till the council is constituted by election. 2. The Government of Assam constituted the first Interim Barak Valley (Hills Tribes) Development Council, Silchar (hereinafter in short referred to ‘Council’) with 15 non official members and two ex-officio members vide Notification dated 14.9.2006 which was re-constituted by including /or excluding some or all members from the council. The council was ultimately re-constituted with 23 members including 2 officials vide Notification No.TAD/BC/491/07 dated 16.2.2011 issued by the Commissioner & secretary to the Govt. of Assam, Welfare of Plain Tribes & Backward Classes Department, Dispur. 3. In the contemporary period Government of Assam at different points of time signed several Memoranda of Agreement with agitating leadership of different tribal communities in the Brahmaputra Valley of Assam like Bodo, Mishing, Tiwa (Lalung), Rabha, Deuri, Sonawal Kachari, Tengal Kachari, Sarania Kachari etc. for providing administrative autonomy and ensuring development of respective communities. In respect of Bodo, Mishing, Rabha, Tiwa and Deuri, Government of Assam have already enacted legislations providing provisions for election of popular council, powers and functions of the Executive Council etc. The erstwhile Bodoland Autonomous Council area has now been included in the 6th Schedule to the Constitution of India which is now known as Bodoland Territorial Autonomous District (in short BTAD). The State Government is yet to enact legislation for election and constitution of Hills development council, in the Barak Valley . 4. In the first Interim Council constituted in 2006 with 17 members vide Notification dated 4.9.2006, all the petitioners were appointed/nominated as members of the Council. Petitioner No.2, Mr. Ngur Sungthang and Petitioner No.3, Mr. Warles Suchiang were appointed as Chairman and Vice Charirman respectively of the aforesaid 2006 Interim Council. As Chairman of the Interim Council of 2006, the petitioner No.2 wrote a letter dated 20.1.2011 to the Minister of W.P.T. & B.C., Assam informing him that one member has resigned from the council and requested him to expand the council by inclusion of 12 members. The names of members to be included were shown in the said letter. The names of the present petitioners were recommended for inclusion as members as they belong to various tribal communities of Barak Valley . After such recommendation Government of Assam issued Notification dated 27.1.2011 allowing restructuring and strengthening of council with 25 members including two Government officers covering the various tribes of Karimganj, Hailakandi and Cachar Districts for providing maximum participation of communities within the framework of the Constitution of India for social, economic, educational, cultural and ethnic advancement. In the said Notification the names of 25 members have not been mentioned /furnished. Pursuant to the Notification dated 21.1.2011 and on the basis of recommendation made by the Cabinet Sub-Committee, the Government of Assam reconstituted the Council by appointing 23 members including two officials, vide Notification dated 16.2.2011. In the said Notification it is provided that the post of Chairman and Vice Chairman of the Council would be elected by the members within 15 days. Two other members were appointed/ included in the said council vide Government Order dated 25.2.2011 issued under No.TAD/BC/491/2007. Only three petitioners namely petitioners No.2,3 and 5 have been included as members in the newly reconstituted council and other petitioners No. 1, 4, 6, 7, 8, 9, 10, 11, 12 and 13 have been left out while reconstituting the council vide Notification dated 16.2.2011. The petitioners are aggrieved by non inclusion of the aforesaid members in the council and therefore they are seeking quashment of the impugned Notification dated 16.2.2011 (Annexure- VI to the writ petition). 5. While issuing notice of motion on 31.3.2011, it was observed that learned State counsel was unable to obtain proper instruction within 31.3.2011 to throw light on the issue raised by the petitioners and as such an interim order was passed to the effect that till returnable date i.e. 25.4.2011 the impugned order dated 16.2.2011shall not be given effect to. The State Respondents have not come forward for vacation/modification of the aforesaid interim order. However, the private respondents No.8 to 25 filed an application on 27.4.2011 for cancellation/vacation /suitable modification of the said Interim order dated 31.3.2011. The said application has been registered as Misc.Case No.1254 of 2011. No order has been passed in the aforesaid Misc. Application but as desired by the learned counsel for the parties, the writ petition has been taken up for hearing and disposal. At the time of hearing the learned counsel for the private respondents submitted that the Misc.Application filed by the private respondents for cancellation/modification of the Interim Order be treated as an affidavit-in- opposition inasmuch as the necessary pleadings have been made therein. The State-Respondents have not filed any response to the writ petition.
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