Page No.# 1/12 vs The State Of Assam And 11 Ors
2021 Latest Caselaw 2982 Gua

                                                                 Page No.# 1/12

GAHC010179242019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/5462/2019

         KALASAND BAISHNAB AND 2 ORS.
         S/O HRIDOY BAISHNAB,VILL. CHANIPUR, P.O. RAJSHAYAPUR, P.S.
         KATHIGARAH, DIST. CACHAR, PIN-788815, ASSAM

         2: SIRAJ UDDIN BARBHUIYAN
          S/O MATIAR RAHMAN BARBHUIYAN
         VILL. KHELMA VI
          P.O. GUMRAH BAZAR
          DIST. CACHAR
          P.S. KATIGARAH
          PIN-788815
         ASSAM

         3: KHASRUL HAQUE TALUKDAR
          S/O MOSTAKIN ALI
          P.O. RAJSHAYAPUR
          P.S. KATIGARH
         VILL. RAJSHAYAPUR
          DIST. CACHAR
          PIN-788815
         ASSA

         VERSUS

         THE STATE OF ASSAM AND 11 ORS.
         REP.BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
         CO-OPERATION DEPTT. DISPUR, GUWAHATI-781006

         2:THE REGISTRAR OF CO-OPERATIVE SOCIETIES
         ASSAM
          KHANAPARA
          GUWAHATI-781022

         3:THE ZONAL JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
                                                       Page No.# 2/12

SILCHAR ZONE
SILCHAR

4:THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
 CACHAR
 SILCHAR
 P.O.SILCHAR
 DIST. CACHAR
ASSAM
 PIN-788001

5:BRAJABASHI DAS
 CHAIRMAN
 GUMRAH CO-OPERATIVE SOCIETY LTD. VILL. KHELMA PART-IV
 P.O. GUMRAH BAZAR
 DIST. 788001

6:MONOJ KR. BAISHNAB
 DIRECTOR
 GUMRAH CO-OPERATIVE SOCIETY LTD. VILL. KHELMA PART-IV
 P.O. GUMRAH BAZAR
 DIST. 788001

7:SUKKURMONI BAISHNAB
 DIRECTOR
 GUMRAH CO-OPERATIVE SOCIETY LTD. VILL. KHELMA PART-IV
 P.O. GUMRAH BAZAR
 DIST. 788001

8:JAGYESWAR BAISHNAB
 DIRECTOR
 GUMRAH CO-OPERATIVE SOCIETY LTD. VILL. KHELMA PART-IV
 P.O. GUMRAH BAZAR
 DIST. 788001

9:GULETUN NESSA
 DIRECTOR
 GUMRAH CO-OPERATIVE SOCIETY LTD. VILL. KHELMA PART-IV
 P.O. GUMRAH BAZAR
 DIST. 788001

10:MALABIKA ROY
 DIRECTOR
 GUMRAH CO-OPERATIVE SOCIETY LTD. VILL. KHELMA PART-IV
 P.O. GUMRAH BAZAR
 DIST. 788001

11:ASKAR UDDIN BARBHUIYA
                                                                       Page No.# 3/12

             DIRECTOR
             GUMRAH CO-OPERATIVE SOCIETY LTD. VILL. KHELMA PART-IV
             P.O. GUMRAH BAZAR
             DIST. 788001

            12:ABHIJIT DAS
             DIRECTOR
             GUMRAH CO-OPERATIVE SOCIETY LTD. VILL. KHELMA PART-IV
             P.O. GUMRAH BAZAR
             DIST. 78800

Advocate for the Petitioner   : MR. A K BARUAH

Advocate for the Respondent : SC, CO OP




                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                          ORDER

Date : 22-11-2021

This writ petition under Article 226 of the Constitution of India has been preferred by three writ petitioners challenging constitution of Board of Directors of Gumrah Co-operative Society Ltd. which was approved by the respondent no. 4 vide his letter dated 07.12.2015. A further direction to the respondent authorities has been sought for to initiate appropriate steps to constitute a Board of Directors of Gumrah Co-operative Society Ltd. afresh in accordance with law. It has also been contended that the Member Register of Gumrah Co- operative Society Ltd. contains a number of names as members who were illegally inducted as members in violation of the provisions of the Assam Co- operative Societies Act, 2007 and in such view of the matter, a correction of the Member Register of Gumrah Co-operative Society Ltd. has been sought for.

2. The subject-matter in this writ petition pertains to the affairs of Gumrah Co-operative Society Ltd. ['the Society', for short], a co-operative society Page No.# 4/12

registered under the provisions of the Assam Co-operative Societies Act, 2007 ['the Act, 2007', for short].

3. The three petitioners have asserted that they are share holders of the Society. It has been stated that on 22.02.2015, the Annual General Meeting ['the AGM', for short] of the Society was held. Thereafter, a complaint was submitted to the effect that prior to the AGM, list of share holders, a list of members with right to vote and a list of members without right to vote were not prepared by following the due process as prescribed under Section 26[3] of the Act, 2007. The matter was enquired into by the respondent no. 2 and after such enquiry, the respondent no. 2 by an order dated 20.05.2015 set aside the election to the Board of Directors of the Society held on 22.02.2015 as well as the approval accorded thereon on 24.02.2015. By the said order, the respondent no. 2 appointed one Senior Inspector/Auditor of Co-operative Societies, O/o the Assistant Registrar of Cooperative Societies, Silchar to manage the affairs of the Society and to hold the AGM/election of the Society strictly as per the provisions of Section 26[3] of the Act, 2007. Pursuant to the said AGM/election held on 22.02.2015, the respondent no. 5 was elected as the Chairman of the Board of Directors of the Society. The order dated 20.05.2015 was challenged in a writ petition, W.P.(C) no. 3394/2015 by the said Board of Directors, elected on 22.02.2015. The writ petition, W.P.(C) no. 3394/2015 was dismissed by an order dated 19.06.2015. While dismissing the writ petition, it was observed that there was no dispute that the voter lists were not prepared and notified following the provisions of Section 26[3] of the Act, 2007 and there was no doubt that the AGM/election was held without due compliance of the provisions of Section 26[3] of the Act which fact the petitioner had themselves admitted and the fact that no separate lists were published as per the provisions of Section 26[3] of Page No.# 5/12

the Act had also been admitted by the respondents. The respondent no. 2 was also directed to ensure holding of the AGM/election of the Society with due compliance of the provisions of the Act, 2007 as expeditiously as possible,

preferably within 1st week of August, 2015. Assailing the said order dated 19.06.2015, a writ appeal, W.A. no. 374/2015 was preferred. On 04.12.2015, the Division Bench ordered that the election of the Society which was scheduled to be held on 06.12.2015, be held but the results of the election shall not be declared without the leave of the Court. It transpires that despite the said order dated 04.12.2015, the results of the election held in the AGM on 07.12.2015 were declared on 07.12.2015 and on 07.12.2015, the respondent no. 4 approved the formation of the new Board of Directors for the year 2015-2016 to 2019-2020 provided they were not disqualified. The writ appeal, W.A. no. 374/2015 came up for hearing on 21.06.2017 before the Division Bench. The Division Bench had held that the election of the Society was held without preparation of the voter lists, as mandated in Section 26[3] of the Act, 2007 and as a result, many members having no right to vote, voted in the election. The Division Bench found no infirmity in the order dated 20.05.2015 passed by the respondent no. 2 as well as in the order dated 19.06.2015 passed by the learned Single Judge in the writ petition, W.P.(C) no. 3394/2015. Accordingly, the writ appeal was dismissed on 21.06.2017. After dismissal of the writ appeal, another writ petition, W.P.(C) no. 1683/2018 was filed on behalf of the Society through the Board of Directors elected on 07.12.2015 and the Chairman of the said Board therein i.e. the respondent no. 5, herein. It was contended therein that the election of the Board of Directors of the Society i.e. the petitioner no. 1 therein, in which the petitioner no. 2 therein was elected as the Chairman [the respondent no. 5 herein] was not assailed in any forum. It was contended that Page No.# 6/12

the interim order dated 04.12.2015 passed in the writ appeal, W.A. no. 374/2015 had merged with the judgment and order dated 21.06.2017 whereby the writ appeal was dismissed. The learned Judge had observed that the life of an interim order subsists during the pendency of the proceeding and an interim order passed during the course of the proceeding cannot survive after disposal of the case unless specifically, for reasons to be noted, it is directed to be continued. It was observed that when the writ appeal, W.A. no. 374/2015 itself came to be dismissed affirming the judgment of the learned Single Judge passed in the writ petition, W.P.(C) no. 3394/2015 which, in turn, had approved the order dated 20.05.2015 passed by the respondent no. 2, the elected Board of Directors ought to be allowed to function as the election of the Board of Directors of the Society, elected on 07.12.2015, was not assailed in any forum. The writ petition, W.P.(C) no. 1683/2018 was disposed of vide order dated 23.03.2018 by allowing the elected Board of Directors to function with a further direction to the respondent authorities to facilitate assumption of charge by the Board of Directors.

4. Heard Mr. A.K. Baruah, learned counsel for the petitioners; Mr. S.K. Talukdar, learned Standing Counsel, Co-operation Department for respondent nos. 1-4 and Mr. D. Das, learned counsel for respondent nos. 5-12.

5. It has been submitted by Mr. Baruah that in view of the order dated 23.03.2018 and expiry of the five years' tenure of the said Board of Directors, the prayers regarding dissolution of the Board of Directors elected in the AGM/election held on 22.02.2015 has been rendered infructuous. He has further submitted that election for a new Board of Directors of the Society for the year 2020-2021 to 2024-2015 was held in the year 2020 and the respondent no. 4 Page No.# 7/12

had approved the same by his order dated 03.12.2020. Mr. Baruah has submitted that in the newly elected Board of Directors also there are several members who are not properly inducted as members of the Society. In the newly elected Board of Directors, the respondent no. 5, the respondent no. 6, the respondent no. 7 and the respondent no. 8 have got elected and in the present writ petition, their induction along with the other private respondents as members of the Society has been challenged. Mr. Baruah has, thus, limited his challenge to the induction of a substantial number of persons illegally as members of the Society. After disposal of the writ petition, W.P.(C) no. 1683/2018, the petitioners submitted a representation before the Deputy Commissioner, Cachar on 12.09.2018 highlighting that the private respondents in this writ petition who became members of the Board of Directors, were illegally inducted as members of the Society. They had asked for causing an enquiry and to take action for the removal of the illegally inducted members of the Society as per the provisions of the Act, 2007. On the basis of the said complaint, one Senior Inspector/Auditor of Co-operative Society, Silchar was directed to conduct an enquiry in the matter by an office order dated 13.09.2018 and the Enquiry Officer submitted his Enquiry Report on 15.09.2018. After receipt of the said Enquiry Report, the respondent no. 3 took up the matter of induction of fake share holders in the Society into consideration. Notices were issued to the complainants/petitioners as well as to the members of the Board of Directors, elected on 07.12.2015, for their appearance on the date of hearing fixed on 26.09.2018.

6. Mr. Baruah has submitted that in the Enquiry Report, the Senior Inspector/Auditor of Co-operative Society had reported that a number of members in the said Board of Directors were inducted as members in the Page No.# 8/12

Society without adhering to the provisions of Section 55 and Section 56 of the Act, 2007. In the said hearing held on 26.09.2018, the complainants/petitioners as well as members of the said Board of Directors were heard. In the said hearing, the Secretary of the Co-operative Society could not produce any documentary evidence regarding nominations by which substantial number of persons were inducted as members of the Society. The Enquiry Report further mentioned that there were more than 100 persons in the Society whose names were also not inducted as members as per the provisions of the Act, 2007. The respondent no. 3 by his order dated 05.10.2018 had directed the respondent no. 4 to conduct a detailed enquiry in the matter and to prepare a correct Member Register after observing necessary formalities.

7. Mr. Talukdar, learned Standing Counsel, Cooperation Department has submitted that for induction of a member in a registered Cooperative Society, the Act, 2007 has provided for the procedure in Section 55 and Section 56 of the Act, 2007 and the bye-laws of the Society. He has submitted that he has not received any instruction as regards completion or otherwise of the detailed enquiry which was ordered by the respondent no. 3 by his order dated 05.10.2018. Referring to the enquiry report annexed by the petitioner as Annexure-J to the writ petition, he has submitted that if the said enquiry report is pursuant to the order dated 05.10.2018 necessary consequential action can be taken on the basis of the said enquiry report. He has, however, submitted that considering the nature of dispute raised by the petitioners regarding induction of a substantial number of persons as members in the Society in an illegal manner and non-preparation of lists of the members having right to vote and of the members without right to vote it would be appropriate that the matter be resolved by resorting to the provisions of Section 92 of Section 93 of Page No.# 9/12

the Act, 2007.

8. Mr. Das, learned counsel appearing for the respondent nos. 5-12 has endorsed the submission advanced by Mr. Talukdar, learned Standing Counsel, Cooperation Department.

9. In reply, Mr. Baruah, learned counsel appearing for the petitioner has also submitted that the grievances of the petitioners regarding induction of substantial number of persons as members illegally in the Society through nominations and non-preparation of the list of members having right to vote and the list of members without right to vote can be effectively redressed by the respondent authorities as per the provisions of Section 92 and Section 93 of the Act, 2007.

10. I have considered the submissions of the learned counsel for the parties and also perused the materials on record.

11. As per Section 2[w] of the Act, 2007, "member" means a person who is admitted as a member of the cooperative society in accordance with the Provisions of the Act, 2007 and bye--laws of the Society and shall include a cooperative self-help group and an institution. Section 55 of the Act, 2007 has provided for nomination of transferee and it states that if the bye-laws of a registered society so permit, any member of the society may, in accordance therewith, nominate a person in whose favour the society shall dispose of the shares or interest of such member on his death. Section 56 of the Act, 2007 has provided for transfer of interest on death of members and it reads as under :

"When a member of a registered society dies, his shares and interest in the society shall, subject to the provisions of this Act, be transferred-

Page No.# 10/12

(a) to the person, if any nominated in accordance with the provision of Section 55; or

(b) if there is no such nominee or if the nominee is not available, or is difficult to be ascertained by the managing body, or if for any other cause such transfer cannot be made without unreasonable delay, the transfer of interest on death of a member shall be made to the person as may appear to the managing body to be the legal heir or legal representative of the deceased member, provided that ninety days have elapsed from the date of the member's death and no new claim shall be entertained after the said period of ninety days."

12. The order dated 05.10.2018 of the respondent no. 3 and the Enquiry Report, annexed as Annexure-J to this writ petition, have reflected that more than 100 number of persons including few of the private respondents were inducted as members through nominations without following the provisions of the Act, 2007. In the order dated 20.05.2015, findings were recorded to the effect that the list of shareholders/members with the right to vote and the list of shareholders/members without right to vote were not prepared by following due process as prescribed under Section 26[3] of the Act, 2007 and there had been violations of Section 26 of the Act, 2007. In the order dated 19.06.2015 passed in the writ petition, W.P.(C) no. 3394/2015, it was held that the lists were not prepared and notified following the provisions of Section 26[3] of the Act, 2007 and there was non-compliance of the provisions of Section 26[3] of the Act, 2007. The Division Bench while affirming the order dated 20.05.2015 of the respondent no. 2 and the order dated 19.06.2015 passed in the writ petition, W.P.(C) no. 3394/2015, returned a finding that due to non-preparation of the lists, as mandated in Section 26[3] of the Act, 2007, many members having no right to vote, voted in the election on 22.02.2015. There is no indication that the said situation has been rectified as on date. In such fact situation obtaining Page No.# 11/12

in the case, the respondent authorities in the Cooperation Society are in the best position to enquire into such matters on the basis of the records of the Society and thereafter, record its finding as regards the members having right to vote and without right to vote of the Society and about persons who were inducted as members in the Society in illegal manners.

13. A perusal of Section 92 of the Act indicates that the subject-matter of the dispute raised in this writ petition can be effectively decided by the respondent no. 2, as submitted by the parties, as the parties herein are members of the Society and the allegation is that a substantial number of persons including few of the private respondents were illegally inducted as members of the Society. Section 93 of the Act, 2007 has provided for settlement of dispute. The respondent no. 2 having received such a reference, can decide the dispute himself or authorize any other Government Officer to decide the dispute.

14. Having taken note of all the submissions of the learned counsel for the parties; the background facts, noted above, and having regard to the subject- matter of dispute raised in this writ petition regarding induction of persons in the Society i.e. Gumrah Co-operative Society Ltd. as members in an illegal manner without adhering to the provisions of the Act, 2007, also observed by this Court in the orders [supra], this writ petition can be disposed of with a direction to the respondent no. 2 i.e. the Registrar, Cooperative Society to conduct an enquiry into the matter of induction of members of the Society by treating the dispute as a reference under Section 92 of the Act and thereafter, to decide the same either by himself or by authorizing any other officer on the basis of the records and materials placed by the parties. It is accordingly ordered. While deciding the reference, the respondent no. 2 shall examine the Page No.# 12/12

matter of induction of persons of members of the Society as per the provisions of the Act, 2007 or otherwise by taking note of the observations made in the order dated 05.10.2018 and in the enquiry report dated 01.01.2019 submitted by the Senior Inspector of Cooperative Societies, Silchar & Enquiry Officer, Gumrah Cooperative Society and also the preparation of lists of members having right to vote and without right to vote. While deciding the same, the respondent no. 2 shall afford opportunities of hearing to the stake holders in the Society including the petitioners and the private respondents, if such hearing is asked for, by fixing a date of hearing within a period of 1 (one) month from the date of receipt of a certified copy of this order from the petitioners. After conducting such hearing, the respondent no. 2 shall dispose of the reference by passing a speaking order as expeditiously as possible, preferably within a period of 6 [six] weeks thereafter.

15. With the observations made and directions given above, this writ petition stands disposed of.

JUDGE

Comparing Assistant