WA/31/2019
2022 Latest Caselaw 940 Gua

                                                                           Page No.# 1/32

GAHC010018982019




                                      Judgment reserved on :28th January,2022

                                      Judgment delivered on : 17/03/2022




                        In the Gauhati High Court
        (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)


                     WRIT APPEALNO.31 OF 2019
                     1. Jahurul Islam Laskar, Son of Late Naman Ali Laskar,
                     Village and Post Office. Boali, P.S- Kochudaram, District-
                     Cachar, Assam, Pin-788099.

                      2. Mozamil Ali Mazumder, aged about 67 years, Vice
                      Chairman, Mongalpur Boalihawar Co-operative Society
                      Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O
                      & P.S-Kachudaram, District-Cachar, Assam, Pin-788099.

                      3. Rubul Haque Laskar, aged about 29 years, Member,
                      Mongalpur Boalihawar Co-operative Society Ltd.,
                      Kachudaram, Village-Dakhin Mohanpur Part-V., P.O &
                      P.S-Kachudaram, District-Cachar, Assam, Pin-788099.

                      4.    Md. Badrul Islam Laskar, aged about 60 years,
                      Member, Mongalpur Boalihawar Co-operative Society
                      Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O
                      & P.S-Kachudaram, District-Cachar, Assam, Pin-788099

                      5.  Nazma Begum Laskar, aged about 46 years,
                      Member, Mongalpur Boalihawar Co-operative Society
                                             Page No.# 2/32

Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O
& P.S-Kachudaram, District-Cachar, Assam, Pin-788099.

6.    Rezia Khatun, aged about 45 years, Member,
Mongalpur Boalihawar Co-operative Society Ltd.,
Kachudaram, Village-Dakhin Mohanpur Part-V., P.O &
P.S-Kachudaram, District-Cachar, Assam, Pin-788099.

7. Fulan Mia Laskar, aged about 37 years, Member,
Mongalpur Boalihawar Co-operative Society Ltd.,
Kachudaram, Village-Dakhin Mohanpur Part-V., P.O &
P.S-Kachudaram, District-Cachar, Assam, Pin-788099.

8. Hafiz Abdul Hoque, aged about 43 years, son of
Late Tasaddar Ali, Village-Bourikandi Part-II, P.O-
Hatikhal Bazar, P.S-Kochudaram, District-Cachar, Assam,
Pin-788116.


                                     ........Appellants


                    -Versus-

1.     Baktar Hussain, Son of-Late Baharul Islam,
Chairman, Mongalpur Boalihawar Co-operative Society
Ltd., Village-Notun Kanchanpur, P.O-Hatikhal Bazar, P.S-
Kochudaram, District-Cachar, Assam.

2.   The State of Assam, to be represented by the
Commissioner and Secretary to the Govt. of Assam, Co-
operation Department. Dispur, Guwahati-6.

3.  The Registrar of Co-operative Societies, Assam,
Khanapara, Guwahati-22.

4.   The Assistant Registrar, Co-operative Societies,
Cachar, Silchar, P.O and P.S-Silchar. District-Cachar,
Assam, Pin-788001.
                                             Page No.# 3/32



5. The Zonal Joint Registrar of Co-operative Societies,
Silchar Zone, Silchar.

6. The Secretary, Mongalpur Boalihawar Co-operative
Society Ltd., Village-Dakhin Mohanpur Part-V., P.O & P.S-
Kachudaram, District-Cachar, Assam, Pin-788116.


                                   ........Respondents

WRIT APPEAL NO.33 OF 2019

1. Baktar Hussain, Son of-Late Baharul Islam, Chairman, Mongalpur Boalihawar Co-operative Society Ltd., Village-Notun Kanchanpur, P.O-Hatikhal Bazar, P.S- Kochudaram, District-Cachar, Assam.

........Appellant

-Versus-

1. The State of Assam, to be represented by the Commissioner and Secretary to the Govt. of Assam, Co- operation Department. Dispur, Guwahati-6.

2. The Registrar of Co-operative Societies, Assam, Khanapara, Guwahati-22.

3. The Assistant Registrar, Co-operative Societies, Cachar, Assam.

4. The Zonal Joint Registrar of Co-operative Societies, Silchar Zone, Silchar.

5. The Secretary, Mongalpur Boalihawar Co-operative Society Ltd., Kochudaram, Village-Dakhin Mohanpur Part-V., P.O & P.S-Kachudaram, District-Cachar, Assam, Page No.# 4/32

Pin-788119.

6. Jahurul Islam Laskar, Son of Late Naman Ali Laskar, Village and Post Office. Boali, P.S- Kochudaram, District- Cachar, Assam, Pin-788099.

7. Mozamil Ali Mazumder, Vice Chairman, Mongalpur Boalihawar Co-operative Society Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O & P.S-Kachudaram, District-Cachar, Assam, Pin-788099.

8. Rubul Haque Laskar, Member, Mongalpur Boalihawar Co-operative Society Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O & P.S-Kachudaram, District-Cachar, Assam, Pin-788099.

9. Md. Badrul Islam Laskar, Member, Mongalpur Boalihawar Co-operative Society Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O & P.S-Kachudaram, District-Cachar, Assam.

10. Nazma Begum Laskar, Member, Mongalpur Boalihawar Co-operative Society Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O & P.S-Kachudaram, District-Cachar, Assam.

11. Rezia Khatun, Member, Mongalpur Boalihawar Co- operative Society Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O & P.S-Kachudaram, District- Cachar, Assam.

12. Fulan Mia Laskar, Member, Mongalpur Boalihawar Co-operative Society Ltd., Kachudaram, Village-Dakhin Mohanpur Part-V., P.O & P.S-Kachudaram, District- Cachar, Assam.

13. Hafiz Abdul Hoque, son of Late Tasaddar Ali, Village-

Page No.# 5/32

Bourikandi Part-II, P.O-Hatikhal Bazar, P.S-Kochudaram, District-Cachar, Assam, Pin-788116.

........Respondents

-B E F O R E -

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

Advocate for the appellants : 1. Mr. A. M. Barbhuiya, learned counsel.

2. Ms. A. Begum, learned counsel.

Advocate for the respondents : Mr. S. K. Talukdar, Standing Counsel, Co operation

Department.

JUDGMENT AND ORDER (CAV) (Soumitra Saikia, J)

These writ appeals are directed against the Judgment and order

dated 21.01.2019 rendered by the learned Single Judge in WP (C) No.

6603/2018. The learned Single Judge declined to entertain the prayers

made in the writ petition and accordingly dismissed the same. Being

aggrieved, the two writ appeals are filed against the Judgment and Order

dated 21.01.2019 by-- the petitioner, in WP(C)/6603/2018--Sri Baktar

Hussain, which is numbered as Writ Appeal 33/2019 and the other by

respondent no.6 in the writ petition WP(C)/6603/2018--Sri Jahurul Islam Page No.# 6/32

Laskar which is numbered as Writ Appeal 31/2019.

2. Pursuant to an election held on 20.11.2016, the petitioner in WP(C)

6603/2018 namely, Baktar Hussain along with 14 others were elected as

Board of Directors of Mangalpur Boalihawar Cooperative Society Ltd. The

result of the said election was approved by the Assistant Registrar of

Cooperative Societies, Cachar. In the first meeting of the Society held on

28.11.2016, the writ petitioner (appellant in W.A.33/2019, Sri Baktar

Hussain), was elected as the Chairman of the said Society. The minutes

of the said meeting were approved by the Assistant Registrar of the

Cooperative Societies, Cachar. Subsequently, the respondent no.6 in

WP(C) 6603/2018 (appellant in W.A. 31/2019, Sri Jahurul Islam Laskar)

along with the 5 others, Directors of the Board submitted a complaint

dated 04.07.2017 to the Assistant Registrar of the Cooperative Societies,

Cachar that the Chairman namely, Baktar Hussain had failed to hold the

Board meeting after 05.08.2017 as per the mandate of Section 43 (1) of

the Assam Cooperative Societies Act, 2007. The Assistant Registrar of the

Cooperative Societies upon receipt of the complaint passed an order

directing that the Chairman and the Vice Chairman of the Board of

Directors had ceased to be such and the remaining members of the Board Page No.# 7/32

of Directors were permitted to elect a new Chairman from amongst

themselves by calling a special Board of Directors meeting. Accordingly,

a Board of Directors meeting was held on 17.12.2017, wherein the

respondent no.6 i.e. appellant in W.A. 31/2019, Jahurul Islam Laskar was

elected the Chairman of the said Society. The petitioner in WP(C)

6603/2018 who is the appellant in W.A. 33/2019--Baktar Hussain, being

aggrieved, assailed the said order of the Assistant Registrar by filing

WP(C) 7898/2017. The said writ petition was disposed of vide order dated

18.12.2017 permitting the aggrieved party i.e. the Appellant in W.A.

33/2019 to prefer an appeal before the Registrar of Cooperative Societies,

Assam against the order dated 08.12.2017 passed by the Assistant

Registrar of Cooperative Societies, Cachar. It was further directed therein

that if such an appeal was filed within 7 (seven) days, then the appellate

authority should consider the same on merit and pass appropriate orders

within 4 (four) weeks thereafter and it was also directed that until the

appeal was decided, the election of the new chairman in the

consequential meeting held on 17.12.2017 will not be operational.

2.1. In the appeal before the Department, preferred by the

petitioner in W.P.(C) 6603/2018 i.e. appellant in W.A. 33/19, Baktar Page No.# 8/32

Hussain, the Registrar of Cooperative Societies, Assam, by order dated

18.01.2018 interfered with the order dated 08.12.2017 passed by the

Assistant Registrar of Cooperative Societies, Assam directing that the

aggrieved party, the appellant in W.A.33/2019 will continue to function as

the Chairman along with the earlier Vice Chairman of the said Society.

Being aggrieved by the order dated 18.01.2018 passed by the Registrar

of Cooperative Societies, the respondent no.6 in W.P (C) 6603/2018, who

is the appellant in W.A. 31/2019, preferred a writ petition being W.P (C)

359/2018 assailing the said order dated 18.01.2013 passed by the

Registrar of Cooperative Societies. The said writ petition, however, came

to be disposed of as infructous by order dated 14.05.2018 on such

prayers made by the petitioner therein. Thereafter, the Assistant

Registrar, Cooperative Societies, Cachar again filed a report before the

Registrar of Cooperative Societies to the effect that the Board of Directors

meeting of the Society held on 31.05.2018 had adopted a resolution to

the effect that the appellant in W.A.33/2019--Sri Baktar Hussain had

ceased to be a Director as per Section 43 (7) of the 2007 Act for being

absent in more than three consecutive meetings held on 05.04.2018,

16.04.2018, 20.04.2018 and 27.05.2018 and that pursuant to removal of

Sri Baktar Hussain as the Chairman, the appellant in W.A 31/2019--Sri Page No.# 9/32

Jahurul Islam Laskar was allowed to function as the Chairman of the

Society. Aggrieved by the said report and resolution adopted, the

appellant in W.A.33/2019--Sri Baktar Hussain filed an appeal before the

Zonal Joint Registrar of Cooperative Society, Silchar. In the meanwhile,

some members of the Board of Directors issued a Notice dated

07.09.2018 to hold the Annual General Meeting of the Society on

22.09.2018. During this period the appeal preferred by the appellant in

W.A 33/2019--Sri Baktar Hussain was disposed of by the Zonal Joint

Registrar of Cooperative Society, Silchar vide order dated 14.09.2018,

wherein it was held that Sri Baktar Hussain had ceased to be the

Chairman and the Director of the said Society along with 6 others as per

the provisions of the 2007 Act. Aggrieved, W.P (C) 6603/2018 was filed

by Sri Baktar Hussain as the petitioner and the following prayers were

made:-

" Under the circumstances, it is humbly prayed that your lordships

would be pleased to admit this petition, call for the records, issue

rule, calling upon the respondents, to show causes, as to why a writ

in the nature of (i) Certiorari shall not be issued, quashing and

setting aside the order dated 14.09.2018 passed by the Zonal Joint

Registrar of cooperative Societies, Slichar, the notice dated Page No.# 10/32

07.09.2018 issued by the respondent No. 5 and 6 and the report

dated 24.07.2018 submitted by the respondent No.3 to the

respondent No.2 and after cause/causes If any being shown, after

hearing the parties and on perusal of records make the rule absolute

by quashing and setting aside the same and/or may be pleased to

pass any other order or orders as your Lordships may deem fit and

proper.

AND

Pending disposal of the application, your Lordships may be pleased

to pass an interim order suspending operation of the impugned order

dated 14.09.2018 passed by the Zonal Joint Registrar of cooperative

Societies, Silchar, the notice dated 07.09.2018 issued by the

respondent No. 5 and 6 and the report dated 24.07.2018 submitted

by respondent No. 3 and/or may be pleased to pass any other order

or orders as your Lordships may deem fit and proper.

And for which act of kindness, the petitioner, as in duty bound, shall

ever pray:"

i) the order dated 14.09.2018 passed by the Zonal Joint

Registrar of Cooperative Societies, Silchar, Page No.# 11/32

ii) the notice dated 07.09.2018 issued by the Secretary,

Mangalpur, Boalihawar Cooperative Societies Ltd. (respondent

no.5) and Jahurul Islam Laskar (respondent no.6), and

iii) report dated 24.09.2018 submitted by the Assistant

Registrar of Cooperative Societies, cachar (respondent no.3) to

the Registrar of Cooperative Societies, Assam (respondent

no.2)".

3. This Court vide order dated 21.09.2018, while issuing Notice had

granted an interim order in favour of the petitioner directing that the

impugned order dated 14.09.2018 passed by Zonal Joint Registrar of

Cooperative Society, Silchar and all consequential steps pursuant thereto

shall remain stayed. It was directed that the petitioner--Sri Baktar

Hussain shall continue to remain the Chairman of the Society until further

orders. The order dated 21.09.2018 passed in WP(C) 6603/2018 whereby

the interim protection was granted to Sri Baktar Hussain is extracted

below:-

     "                        ORDER



         Date : 21-09-2018
                                                                         Page No.# 12/32

Heard Mr M J Quadir, learned counsel for the petitioner, Dr B Ahmed,

learned Standing Counsel, Cooperation Department and Mr A M Barbhuiyan,

learned counsel for respondent No. 6 on caveat.

2. Matter relates to holding of office of Chairman and Vice-Chairman of

Mangalpur Boalihowar Cooperative Society Limited (Society).

3. Petitioner had earlier approached this Court by filing a writ petition

being WP(C) No. 7898 of 2017, assailing the legality and correctness of an

order dated 08.12.2017, issued by the Assistant Registrar of Cooperative

Societies, Silchar, declaring that Chairman and Vice-Chairman of the Society

had ceased to hold office for failing to hold the required number of meetings

of the Board of Directors, within the stipulated period. The writ petition was

disposed of by this Court vide order dated 18.12.2017 by giving opportunity

to the petitioner to file appeal under Section 111 of the Assam Cooperative

Societies Act, 2007 (2007 Act) within 7 (seven) days and till the appeal was

decided it was made clear that the election of new Chairman would not be

operational.

4. Thereafter, petitioner had filed appeal and after due consideration the

appellate authority, i.e., the Registrar of Cooperative Societies, Assam, passed

an order dated 18.01.2018, holding that order dated 08.12.2017 of the

Assistant Registrar of Cooperative Societies, Silchar, had violated the

provisions of the 2007 Act, and, therefore, the same was set aside. It was Page No.# 13/32

declared that Sri Baktar Hussain (petitioner) and Sri Mojmil Ali Mazumdar

would continue to function as Chairman and Vice-Chairman of the Society and

complete their tenure as long as they comply with the provisions of the Act

and bye-laws of the Society.

5. This order was passed on 18.01.2018.

6. Order of the Registrar as above was put to challenge by respondent

No. 6 and others before this Court in WP(C) No. 359 of 2018. On 14.05.2018,

submission was made that the writ petition has become infructuous and

therefore, it was disposed of as infructuous. In the meanwhile, Assistant

Registrar of Cooperative Societies submitted report dated 24.07.2018 to the

Registrar of Cooperative Societies, Assam, vide forwarding letter dated

08.05.2018. It appears that the said report was adverse to the petitioner.

7. Petitioner purportedly filed an appeal before the Zonal Joint Registrar

of Cooperative Societies, Silchar, against submission of report by the Assistant

Registrar of Cooperative Societies. The Zonal Joint Registrar of Cooperative

Societies passed an order dated 14.09.2018, thereon declaring that petitioner

had failed to discharge his duty and, therefore, he disqualified himself as

Chairman of the Society under Section 43 (2) of the 2007 Act. Consequently,

he had also ceased to be Director.

8. Such interference by the Zonal Joint Registrar cannot be accepted for Page No.# 14/32

more than one reason. Firstly, no appeal was maintainable against a report

submitted by the Assistant Registrar to the Registrar, that too, before an

intermediate authority. Therefore, appeal itself was not maintainable.

Consequently, order dated 14.09.2018, is without jurisdiction. Secondly, when

the Registrar of Cooperative Societies had passed an order on 18.01.2018,

passing of the impugned order dated 14.09.2018 by the Zonal Joint Registrar

contrary to the finding of the Registrar was highly improper and virtually

amounts to indiscipline, challenging the authority of the Registrar. Thirdly, the

report having been submitted by the Assistant Registrar before the Registrar,

it was for the Registrar to take a decision, whether to accept the report or

not. Interference by the Zonal Joint Registrar is thus totally unwarranted,

uncalled for and without jurisdiction. Prima facie, impugned order dated

14.09.2018 appears to be wholly unsustainable in law.

9. Issue notice, returnable within 6 (six) weeks.

10. Dr B Ahmed, learned Standing Counsel, Cooperation Department,

accepts notice on behalf of respondent Nos. 1 to 4, whereas, Mr A M

Barbhuiyan, learned counsel appears on behalf of respondent No. 6 on

caveat. Extra copies within 3 (three) days.

11. Notice to respondent No. 5 by registered post with A/D. Steps within

3 (three) days.

Page No.# 15/32

12. Having heard learned counsel for the parties and on due

consideration, impugned order dated 14.09.2018 and all consequential steps

pursuant thereto shall remain stayed. Petitioner shall continue to remain as

Chairman of the Society, until further orders.

(Emphasis Supplied)

13. Though this Court wanted to direct personal appearance of the

Zonal Joint Registrar of Cooperative Societies, Silchar, for his unacceptable

conduct, Dr B Ahmed, learned Standing Counsel, Cooperation Department

has pleaded with the Court to spare him for the time being.

14. In view of the submission of Dr B Ahmed, Court would refrain from

summoning the Zonal Joint Registrar of Cooperative Societies, Silchar, for the

time being.

15. List this case in the admission column, on 02.11.2018".

4. The Interim Order granted was not vacated/modified. The matter

came to be finally heard and disposed of vide Judgment and Order dated

21.01.2019 passed by the learned Single Judge, which is impugned in the

present Writ Appeals. The learned Single Judge held that the allegation

that the petitioner (appellant in W.A 33/2019) failed to hold the Board of Page No.# 16/32

Directors meeting, cannot be sustained in view of the order dated

18.01.2018 passed by the Registrar of Cooperative Societies, wherein the

sequential dates of the Board of Directors meeting held on the various

dates were reflected and consequently, the learned Single Judge held that

the allegation that there was a violation of the provision of Section 43 (1)

of the 2007 Act, was negated. However, in respect of the allegation that

the petitioner failed to hold the special requisitioned meeting, the learned

Single Judge held that the specific averments denying the said allegation

not being available in the pleadings of the petitioner, it must be concluded

that there was a failure on the part of the petitioner to hold the specially

requisitioned meeting. It was held that consequently as per the provisions

of Section 43 (3) and 43(4) of the 2007 Act, the petitioner ceased to be

the Chairman on the expiry of the date of the period specified in the

requisition for the Special Meeting and further in terms of the provisions

of Section 43 (3) and 43(4) of the 2007 Act, the petitioner--Sri Baktar

Hussain had ceased to be the Chairman for a period of 3 years.

5. The learned Single Judge held that the report dated 08.05.2018

submitted by the Assistant Registrar, Cooperative Societies, Cachar,

Silchar (Respondent no.3.) to the Registrar of Cooperative Societies, Page No.# 17/32

Assam, Khanapara, Guwahati (respondent no.2) also specified that no

special Board of Directors meeting with specified agenda was convened in

terms of the written requisition dated 24.03.2018, within the time

specified under Section 43 (2) of the 2007 Act and therefore, by

operation of Section 43(3), the petitioner had ceased to be the Chairman.

It was also held by the learned Single Judge that in the reconvened Board

of Directors meeting earlier scheduled on 24.04.2018, which was

projected to be the adjourned/suspended Board of Directors meeting held

on 05.04.2018, the no confidence motion was not put to discussion as

required under Section 43 (2) of the 2007 Act as was evident from the

agenda itself. The learned Single Judge referred to a Judgment of a

Division Bench of this Court rendered in-- Shahirul Islam & 2 ors. Vs. The

State of Assam & 5 ors. [W.P.(C) No. 6918/2017, delivered on

12.10.2018], and accepted the views of the Division Bench to be a

binding precedent in respect of the interpretation of Section 39 of the

2007 Act to the effect that failure to hold the meeting within the period

specified under Section 39 of the 2007 Act, will entail an automatic

dissolution of the Board of Directors of the said society. The learned

Single Judge held that in view of the findings of the Division Bench of this

Court rendered in Shahirul Islam (Supra), on the facts of the case the writ Page No.# 18/32

petition had become infructous upon the automatic dissolution of the

Board of Directors with effect from 30.09.2018 and legal consequences

arising out of such a situation is bound to follow. The writ petition was

accordingly dismissed as being infructous.

6. The learned counsel appearing for the appellant in W.A 31/2019

submits that in terms of the mandate of 2007 Act, the Annual General

Meeting was required to be held as per the time specified under Section

39 of the Act i.e. within a period of 6 months of the close of the financial

year of the Cooperative Society. To that extent the learned counsel

appearing for the appellant in WA 31/2019 fairly submits that the issue of

whether the Board of Directors has been dissolved or not is no longer a

question to be decided in terms of the mandate of Section 39. He,

however, submits that the responsibility of holding the Annual General

Meeting is vested on the Chairman or in his absence the Vice Chairman of

the Board of Directors of the Society. If for some reason the said office

bearers failed in their responsibilities to hold the Annual General Meeting

within the period specified, then the entire Board of Directors gets

dissolved for no fault on their part. It is submitted that furthermore there

is a strong apprehension that because of the automatic dissolution of the Page No.# 19/32

Board of Directors in terms of Section 39 of the Act, although the

appellant in W.A 31/2019--Sri Jahurul Islam Laskar is not opposed to

holding fresh elections for electing the members/directors of the

Cooperative Society, in view of the provisions of Section 40(4) (a) of the

Act of 2007, there is an apprehension that the appellant may not be

permitted to participate in the elections, which will be held in the near

future for the Cooperative Society. It is submitted that the Appellant in

W.A 31/2019--Sri Jahurul Islam Laskar is aggrieved by the disposal of the

WP(C) 6603/2018 by the learned Single Judge as being infructous

without deciding the issue as to whether automatic dissolution of the

Board of Directors in terms of the provisions of Section 39 will operate as

per Section 40 (4) (a) of the 2007 Act in respect of a member of a

Cooperative society to become a Director until 5(five) years have elapsed

from the date such a member ceased to be a Director. He, therefore,

submits that to that extent the impugned Judgment and Order of the

learned Single Judge is erroneous and therefore needs to be interfered

with and set aside.

7. Mr. S. K. Talukdar, learned Standing counsel appearing for the

Cooperation Department submits that the entire matter has become Page No.# 20/32

infructous and therefore, both these appeals should be dismissed

accordingly since the issue as regards the automatic dissolution of the

Board of Directors in respect of the Cooperative Society has already been

decided by a Co-Ordinate Bench of this Court in the Judgment rendered

in Shahirul Islam (Supra). The same having attained finality in law, in

respect of the interpretation of Section 39 of the 2007 Act, there is no

provision under Section 39 for grant of any extension for holding Board of

Directors meeting. As such, the appeals are required to be dismissed, as

being infructous. He further submits that any legal consequence that may

arise because of the failure of the Board of Directors to perform their

duties as mandated under Section 39 of the Act 2007 as well as under

the other provisions of the Act, will have to be faced by the appellants.

He submits that there being no infirmity in the learned Single Judge's

Judgment and Order, the appeals therefore ought to be dismissed.

8. We have heard the learned counsels appearing for the parties and

have carefully perused the pleadings on record as well as the impugned

Judgment dated 21.01.2019 rendered by the learned Single Judge. Since

both the writ appeals arise out of the same impugned Judgment, the writ

appeals are taken up together for disposal.

Page No.# 21/32

9. Having heard the learned counsels for the parties it will be apposite

to refer to the relevant provisions of the Act of 2007.

Sections 32, 33, 39 and 40 of the 2007 Act are extracted below:-

"32. General Meeting--The Board may, at any time, call a general meeting of the members of the cooperative society. However, one general meeting in every cooperative year must be convened by the Board.

33. Special General Meeting- (1) The Board may call a special general meeting and shall be bound to do so within forty five days of the date of receipt of a written requisition,-

(a) signed by not less than twenty five percent of the members having right to vote; or

(b) from the Registrar.

(2) Such requisition shall contain the reasons why the meeting is felt necessary and the proposed agenda and no subject other than the subjects included in the proposed agenda shall be discussed at the special general meeting.

(3) If the Board fails to hold a special general meeting on requisition under sub-section (1) or any of the Annual General Meeting under Section 32 within the period specified therein all directors shall cease to be directors on the date of expiry of the said specified period.

(4) Any meeting of the General Assembly other than the Special General Meeting may, with the consent of the majority of the members present, be adjourned from time of time to a later hour on the same day or to any other date as may be provided in this bye-laws, but no business other than that left over at the adjourned meeting shall be transacted at the next meeting.

Page No.# 22/32

A notice of such adjournment posted in the notice board of the head office of the coopetative society on the day on which the meeting is adjourned shall be deemed sufficient notice of the next adjourned meeting".

"39. Annual General Meeting. A general meeting to be termed as Annual General Assembly of a registered Co-operative Society shall be held at least once in every Co-operative year. Within a period of six months of close of the financial year to transact the business as provided in this Act. The Board shall automatically stand dissolved for not holding Annual General Meeting in accordance with the pr provisions of the Act and byelaws within six months from the expiry of every Financial year.

40. Eligibility for a Director in cooperative society-- Subject to such other conditions as may be specified in the bye-laws a member of a cooperative society shall be eligible for being chosen as a Director of the cooperative society, if-

-(1) such member has the right to vote in the affairs of the cooperative society;

(2) such member has patronised the services of the cooperative society during the previous financial year to the extent and in the manner specified in the bye-laws and has attended at least two Annual General Meetings in the previous five years;

(3) such member has no pecuniary interest in any subsisting contract made with, or work being done for the cooperative society except as otherwise specified in the bye-laws;

(4) the period of five years has elapsed from the date such member ceased to be a Director for the following reasons:-

Page No.# 23/32

(a) not conducting or wrongly conducting the Annual General Meeting under Section 39 or Special General Meeting under sub-section (3) of Section 33 and Board meetings under sub-section (3) of Section 43;

(Emphasis Supplied)

(b) non submission of annual report of activities, annual financial statement of accounts to the general body under sub- section (4) of Section 30;

(c) not conducting the meeting of the Board under sub section of Section 43 of delegates or representative under sub- section (3), of Section 41;

(d) absence from Board meetings under sub-section (7) of Section 43;

(e) automatic dissolution under sub-section (3) of Section 41;

(f) for failure to take follow up action on audit report as specified in Section 85.

(5) such member is free from default of any payment due to the society".

10. It is seen from the pleadings that the Board of Directors including

both the appellants were elected on 20.11.2016 and the said results were

approved by the Assistant Registrar of Cooperative Societies on Page No.# 24/32

23.11.2016. In terms of Section 42 of the Act of 2007, the term of the

Board of Directors of the Cooperative Society and its office bearers will be

five (5) years from the date of election. Under provisions of Section 39 as

discussed above, the Annual General Meeting is mandated to be held at

least once in every cooperative year within a period of 6 (six) months

from the date of the close of the financial year to transact the business as

provided in this Act. In the event, no Annual General Meeting is held as

mandated, the Board shall automatically stand dissolved for not holding

the Annual General Meeting in accordance of the provisions of the Act

and the byelaws. From the pleadings it is not discernable as to the date

for the close of the financial year of the society. Ordinarily, 31 st March, is

considered to be the close of the financial year. In some cases 30 th

September is also considered to be the close of the financial year. The

dispute between the two rival groups arose due to the failure on the part

of the appellant in WA 33/2019, namely, Sri Baktar Hussain to convene a

special meeting and/or a meeting to discuss the no-confidence motion

against him, as requisitioned in writing by the appellant in W.A. 31/2019,

namely, Sri Jahurul Islam Laskar along with other members. The matter

travelled to the Registrar of the Cooperative Societies. While allegations Page No.# 25/32

and counter allegations were being made against each other by the rival

parties, what perhaps was lost sight of by both the appellants and their

followers was the mandate under Section 39 of the Act of 2007. The

provisions of Section 39 of the Act 2007 specifically mandates that there

shall be an Annual General Meeting in at least once in every cooperative

year within a period of 6 months from the close of the financial year to

transact a business as provided for under the Act. Section 32 and Section

33 of the Act of 2007 provides for General Meeting and Special General

Meeting respectively. As discussed above the dispute between the two

rival groups essentially was the failure of the Chairman and Vice

Chairman of the Board of Directors to hold a special General Meeting as

requisitioned by the appellant in W.A. 31/2019--Sri Jahurul Islam Laskar

and his fellow Directors. The allegations and counter allegations against

both the groups was to the effect of justifying that the special meeting

sought for by the written requisition could not be held because of several

intervening reasons including the interim order dated 21.09.2018 passed

by this Court in WP(C) 6603/2018. However, in the tumult that arose

between the rival groups what was lost sight of is the mandate under

Section 39 of the Act which provides for holding of an Annual General

Meeting at least once in every cooperative year within a period of the 6 Page No.# 26/32

months of the close of the financial year and the automatic dissolution of

the Board for failure to hold the Annual General Meeting as mandated

under the Section. The Annual General Meeting not having been

conducted, admittedly as is evident on the facts of the case, the Board

automatically stood dissolved. In Shahirul Islam (Supra), the following

questions of law arose before a Co-ordinate Bench of this Court :-

1. Whether Section 39 of the Assam Cooperative Societies

Act, 2007 is pari materia to the provisions of Section 32 of the

Assam Cooperative Societies Act, 1949 ?

2. Whether the provisions of Section 39 of the Assam

Cooperative Societies Act, 2007 would not be attracted to an

adjourned Annual General Meeting of a Cooperative Society?

3. Whether the time limit prescribed under Section 39 of the

Assam Cooperative Societies Act, 2007 is inflexible and

whether no time can be granted beyond the prescribed period

for holding Annual General Meeting of a Cooperative Society?

The Co-Ordinate bench of this Court after a detailed consideration Page No.# 27/32

of the provisions of Section 32 (2) of the Assam Cooperative Societies

Act, 1949 and Section 39 of the Assam Cooperative Societies Act, 2007

held that the two provisions are not identical. While under Section 32 (2)

of the Assam Cooperative Societies Act, 1949 there was a provision for

seeking extension for holding the Annual General Meeting beyond the

time limit prescribed for holding such a Annual General Meeting, whereas

under Section 39 of the 2007 Act there is no such provision for extension.

Language of Section 39 is precise and clear leaving no room for

ambiguity. If there is a failure to hold the Annual General Meeting within

the period prescribed, it would lead to automatic dissolution of Board of

Directors.

11. We have carefully perused the Judgment rendered by the

Coordinate Bench and we see no reason to differ with the views and the

reasoning given by Co-Ordinate Bench of this Court in Shahirul Islam

(Supra) in its interpretation of the time limit prescribed for holding the

Annual General Meeting as mandated by Section 39 of the 2007 Act. The

learned Single Judge has recorded in the impugned Judgment and Order

that although the Special General Meeting as per the written requisition

was called on 05.04.2018 initially which was deferred to 20.04.2018, but Page No.# 28/32

on perusal of the Notice, it was seen that the issue regarding the "No-

confidence" motion in respect of the Chairman i.e. Baktar Hussain was

not even an agenda item and therefore no discussion could have been

held in such a meeting. As such the learned Single Judge came to a

finding that the contention of the petitioner that the meeting held on

20.04.2018 which was projected to be the deferred Special General

Meeting is totally incorrect as the same is not supported by the materials

available on record. Consequently, neither Annual General Meeting nor

Special General Meeting was held as mandated under the provisions of

2007 Act. As such by virtue of the provisions of Section 33 (3) and 39 of

the Act, the Board of Directors comprising of the appellant in W.A

33/2019 and as well as the appellant in W.A. 31/2019 had ceased to be

Directors by automatic dissolution as prescribed under the provisions of

the Act and has been interpreted by this Court in Shahirul Islam (Supra).

Consequently, we upheld the findings of the learned Single Judge that the

writ petition has essentially become infructous and does not call for any

other order to be passed in respect of whether either of the appellants or

both should continue as Directors.

12. Having said that, on the facts of the case we do not find that the Page No.# 29/32

embargo under Section 40 (4) (a) is attracted in respect of the appellants

as well as the other members of the erstwhile Board of Cooperative

Society. The embargo under Section 40 (4) (a) is essentially for ' not

conducting or wrongly conducting' an Annual General Meeting or Special

General Meeting or Board meetings. The term "Conducting a Meeting" is

not defined under the Act of 2007. Recourse to the dictionary meaning is

therefore required to be made in the absence of any specific definition

prescribed under the Act.

12.1. The Major Law Lexicon, 4th Edition, 2010 defines conduct as - "

'Conduct' means nothing else than 'control'. The word 'conduct' imports

an idea of management, a guidance and overall supervision. 'Conduct' is

wide enough to include and is synonymous with both manage and control

and manage as it seems means an overall supervision even to the details

of solving the problems as also take the detail decisions. Raja Mahapatra

Vs Board of Secondary Education Orissa, AIR 1988 Ori 65".

12.2. The Chambers dictionary, 1983 Edition defines conduct as - " to

lead or guide, to convey, to direct, to manage, to behave, to carry or

transmit to beat time for and coordinate, the Act of method of living or Page No.# 30/32

managing........."

12.3. As such it is clear that the meaning which can be ascribed to the

term 'not conducting or wrongly conducting' as specified under Section 40

(4) (a) will have to be understood to mean that a meeting was duly called

for and the issues raised in the agenda were brought up for discussion

and the resolutions thereon are recorded in minutes and such other

requirements and procedures as may be prescribed by law are adhered

to. In the event a meeting is called for and the procedures mandated by

law are not adopted or followed as prescribed, then it will amount to " not

conducting or wrongly conducting" any meeting including Annual General

Meeting and Special General Meeting. Under Section 49 (1) of the Act of

2007 a Chief Executive of the society by whatever designation is to be

appointed by the Board or the State Government. The Chief Executive

appointed under Section 49 of the Act is under the General

Superintendence, Direction and Control of the Board and responsible for

the day to day management of the business of the Co-operative,

operating the accounts and making arrangements for safe custody of

cash, signing documents for and on behalf of the Co-operative societies

Under Section 49 (2) (e) it is the Chief Executive, who is responsible for Page No.# 31/32

convening meetings of the General Body of the Co-operative Society, the

Board and the Executive Committee and other Committees and sub-

Committees constituted under the provisions of the Act, byelaws and

maintain proper records for such meetings. The powers and functions are

prescribed under Section 49(2) of the Act of 2007. " Convening the

meeting of the General Bodies of the Co-operative societies" is inter-alia

one of the functions prescribed under the Act. In view of such specific

provisions under the Act, it is the Chief Executive who is required to

convene the meetings. In the facts of the present case as is evident from

the pleadings it is seen that no meeting as prescribed under Section 39

was at all called for. As such, it cannot be said that any meeting was held

and conducted as per the provisions of the Act of 2007. Consequently

since no meeting was held, the question of any meeting being conducted

or wrongly conducted by the Directors, in the facts of the present case

did not arise.

13. In view of our findings that no Special General Meeting or Annual

General Meeting having been called for as required under the provisions

of the Assam Cooperative Societies Act of 2007, the embargo prescribed

under Section 40 (4) (a) will not be applicable to the appellants and the Page No.# 32/32

members of the erstwhile Board of Directors of Mangalpur Boalihawar

Cooperative Society Ltd. in the facts of the present proceedings.

14. Accordingly, both the writ Appeals are disposed of in terms of the

above. The respondent Cooperation department is directed to conduct

the elections as per the provisions of Act 2007. We hold that while the

Board of Directors of Mangalpur Boalihawar Cooperative Society Ltd.

stood automatically dissolved by operation of law as mandated under

Section 33 (3) and Section 39 of the Assam Cooperative Societies Act,

2007, the embargo under Section 40 (4) (a) however will not be

applicable to the members of Board of Directors of Mangalpur Boalihawar

Cooperative Society Ltd. in the facts of the present proceedings.

15. Writ appeals are accordingly disposed of in terms of the above.

16. No order as to cost.

                      JUDGE                CHIEF JUSTICE




Comparing Assistant