Gauhati High Court
Page No.# 1/13 vs The State Of Assam And 3 Ors on 15 July, 2024
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010027522023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/763/2023
BOARD OF DIRECTOR OF GREATER BADARPUR PRIMARY MILK
PRODUCTION CO-OPERATIVE SOCIETY LIMITED AND ANR
HEAD OFFICE AT S.T. ROAD, BADARPUR,
P.O.- BADARPUR, DISTRICT- KARIMGAJ, PIN- 788806.
BRANCH OFFICE- JUMBASTI, P.O. BADARPUR, DISTRICT- KARIMGANJ,
ASSAM, PIN- 788806.
(REPRESENTED BY ITS CHAIRMAN).
2: ABDUL LATIF
SON OF LATE MAKROM ALI
RESIDENT OF VILLAGE- ALEKHARGOOL
P.O.- ANGLARBAZAR
DISTRICT- KARIMGANJ
ASSAM
PIN- 788806.
(CHAIRMAN
GREATER BADARPUR PRIMARY MILK PRODUCTION COOPERATIVE
SOCIETY LIMITED)
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM,
COOPERATIVE DEPARTMENT,
DISPUR, GUWAHATI-6.
2:THE REGISTRAR OF COOPERATIVE SOCIETIES
ASSAM
KHANAPARA
GUWAHATI-22.
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3:THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES
KARIMGANJ
P.O. AND DIST.- KARIMGANJ
ASSAM
PIN- 788
4:MATILAL DEY
SON OF LATE MONORANJAN DEY
RESIDENT OF VILLAGE- JUM BASTI
P.O.- BADARPUR
PIN- 788806
DISTRICT- KARIMGANJ
ASSAM
Advocate for the Petitioner : DR. B AHMED
Advocate for the Respondent : SC, CO OP
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioners : Mr. P.K. Roy Choudhury, Advocate.
For State respondent Nos.1 to 3 : Mr. S.K. Talukdar, standing counsel.
For respondent No.4 : Mr. M.H. Laskar, Advocate.
Date of hearing : 05.04.2024.
Date of judgment : 15.07.2024.
JUDGMENT AND ORDER
(CAV)
Heard Mr. P.K. Roy Choudhury, learned counsel for the
petitioners as well as Mr. S.K. Talukdar, learned standing counsel for the
Cooperation Department, representing respondent nos. 1 to 3 and Mr. M.H.
Laskar, learned counsel for respondent no.4.
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Case of the petitioners and submissions by their learned counsel:
2) The petitioner no.1 is the Board of Directors of Greater Badarpur
Primary Milk Production Co-operative Society Ltd. (hereinafter referred to as
"GBPMPCS Ltd." for short), represented by its Chairman, and the petitioner no.2
is the Chairman of the said cooperative society.
3) By filing this writ petition under Article 226 of the Constitution of
India, the petitioners have prayed for issuance of a writ in the nature of
certiorari for setting aside the order dated 01.02.2023, passed by the Registrar
of Co-operative Societies, Assam, by which direction was issued to constitute a
new Board as per section 41(6) of the Assam Cooperative Societies Act, 2007
(hereinafter referred to as "ACS Act" for short); and for issuance of a writ in the
nature of mandamus, directing the respondents to allow the petitioners to
continue as Board of Directors of GBPMPCS Ltd.
4) The case of the petitioners is that in the Annual General
Meeting-cum-elections held on 17.04.2022, the petitioner no.1 Board of
Directors of the GBPMPCS Ltd. was elected for the term 2022-23 to 2026-27. In
the same Annual General Meeting (hereinafter referred to as "AGM" for short), a
new Secretary was permanently appointed by replacing the respondent no.4.
The respondent no.4 had submitted an appeal dated 25.04.2022, before the
Registrar of Cooperative Societies, Assam (respondent no.2), inter alia, alleging
that the petitioner no. 2 had manipulated the date of AGM for the year 2001-22
and thus, it was prayed that no approval of the new Board should be granted.
Upon hearing both sides, by order dated 04.08.2022, the respondent no.2 had
dismissed the said appeal. Thereafter, the respondent no. 4 filed a review
petition, wherein he had prayed for a direction to allow him to continue as
Secretary. The respondent no. 4 had also filed a writ petition before this Court
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for a direction to the respondent no. 2 to dispose of the review petition.
Accordingly, W.P.(C) 5805/2022, filed by respondent no. 4 was disposed of by
order dated 05.09.2022, directing the respondent no. 2 to dispose of the review
petition within 4 (four) weeks by passing a speaking order. Thereafter, by order
dated 01.02.2023, which is impugned herein, the approval order dated
09.10.2021, for the AGM for the year 2021-22 was set aside, by further
directing that the Board of the society is to be constituted as per section 41(6)
of the ACS Act.
5) The learned counsel for the petitioner had elaborated that the
previous Board of Directors of the GBPMPCS Ltd. for the period 2017-18 to
2021-22 was constituted on 25.05.2017. The last AGM for the year 2021 was
held on 30.09.2021 and the said AGM was approved by the Assistant Registrar
of Cooperative Societies, Karimganj (respondent no.3) on 09.10.2021. It was
submitted that the erstwhile Board of Directors in its meeting held on
09.02.2022, had resolved to release the respondent no. 4 from the post of
Secretary of the said GBPMPCS Ltd. and the respondent no. 4 was accordingly,
relieved vide letter dated 10.02.2022.
6) Thereafter, notice dated 01.04.2022 was issued under the
signature of petitioner no. 2 to hold the AGM and Election of the new Board for
term 2022-23 to 2026-27 on 17.04.2022 at 10.00 AM. to 12.00 noon and
General Meeting from 12.00 AM to 3.00 PM at Jumbasti M.E. School.
Accordingly, the AGM/ Election was held on 17.04.2022 and vide resolution no.7,
the petitioner no. 1, being the new Board of Directors was constituted, which
received approval of the respondent no. 3 on 02.05.2022. Thereafter, the first
meeting of the new Board was held on 08.05.2022, where the petitioner no. 2
was selected as Chairman, and the Vice Chairman was also selected, which
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received approval from the respondent no.3 on 27.05.2022.
7) Thus, it was highlighted by the learned counsel for the petitioner
that the appeal dated 25.04.2022, by the respondent no. 4 was filed after
17.04.2022, i.e. after the AMG and elections had already been held. However,
the said appeal was dismissed by the respondent no.2 by order dated
04.08.2022. Against the said appellate order, a review petition dated
12.08.2022, under section 111(2) was filed by the respondent no. 4 before the
respondent no.2.
8) In the meanwhile, on 29.04.2022, during the pendency of the
appeal, the respondent no. 4 had also submitted another representation dated
12.04.2022, before the respondent no. 3 for conducting an enquiry against
illegalities committed by the outgoing Board of Directors against the petitioner.
However, notice dated 06.05.2022, was issued in respect of the acts of the
outgoing Board was issued to the new Board of Directors.
9) In terms of order dated 05.09.2022, passed by this Court in W.P.
(C) No. 5805/2022, the Registrar of Cooperative Societies, Assam (respondent
no.2), set aside the approval order dated 09.10.2021, with a direction to
constitute the new Board Directors under section 41(6) of the ACS Act. In that
regard, it was submitted that the said order was implemented and thereafter,
the AGM and elections were also held.
10) Submissions were made on specific allegations against the
respondent no.4, which is not elaborated herein for the reasons which would be
given later.
11) In support of his submissions, the learned counsel for the
petitioner has referred to the following case citations, viz., (i) O.N. Mohindroo v.
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The District Judge, Delhi & Anr., (1971) 3 SCC 5 , (ii) Advanta India Ltd. v. B.N.
Shivanna & Anr., (2018) 14 SCC 666, (iii) Chairman, Brahmaputra Kholoibil
Fishery Cooperative Society Ltd. v. State of Assam & Ors., 1995 (3) GLT 232 .
Submissions of the learned Standing Counsel for State respondent nos. 1, 2 and
3:
12) Per contra, the learned standing counsel for the respondent nos. 1
to 3 has submitted that the Supreme Court of India, in the case of Grindlays
Bank Ltd. v. Central Government Industrial Tribunal & Ors., 1980 (Supp) SCC
420, has held as follows:-
13. ... Furthermore, different considerations arise on review. The expression
review is used in two distinct senses, namely, (1) a procedural review which is
either inherent or implied in a court or Tribunal to set aside a palpably erroneous
order passed under a misapprehension by it, and (2) a review on merits when the
error sought to be corrected is one of law and is apparent on the face of the
record. It is in the latter sense that the Court in Patel Narshi Thakershi case [Patel
Narshi Patel Thakershi v. Pradyummansinghji Arjunshinghi, (1971) 3 SCC 844: AIR
1970 SC 1273 ], held that no review lies on merits unless a statute specifically
provides for it, obviously when a review is sought due to a procedural defect, the
inadvertent error committed by the Tribunal must be corrected ex debito justitiae
to prevent the abuse of its process, and such power inheres in every Court or
Tribunal.
13) It was submitted that following the principles laid down in the
case of Patel Narshi Patel Thakershi (supra), as followed in the case of Grindlays
Bank (supra), the Supreme Court of India did not found fault with the order of
review passed by the Industrial Tribunal, though power of review was not
conferred under the statute owing to inherent power of the Tribunal to do ex
debito justitiae. Hence, it was submitted that it was permissible for the Tribunal
to exercise power of review.
14) Moreover, it was submitted that notwithstanding that the appeal
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of the respondent no. 4 was disposed of by order dated 04.08.2022, however,
as this Court had issued a direction vide order dated 05.09.2022 in W.P.(C)
5805/2022, to dispose of the review petition, the respondent no.2, being bound
by the said order, had disposed of the review petition dated 12.08.2022, filed by
the respondent no.4, in accordance with law.
15) In support of his submissions, apart from referring to the two
cases referred herein before, the learned standing counsel for the State
respondent nos. 1, 2 and 3 has further relied on the case of Kapra Mazdoor
Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. & Anr., (2005) 13
SCC 777.
16) Per contra, the learned counsel for the respondent no. 4 has also
opposed this writ petition. It was submitted that without any basis, it was being
projected as if the service of the respondent no. 4 was terminated by the
erstwhile Board of Directors of GBPMPCS Ltd. It was also submitted that it is a
false projection by the petitioner that the respondent no. 4 had raised
allegations against the management of GBPMPCS Ltd. after the appointment of
the new Secretary in his place only after the election of the Board of Directors of
the said Society for the term 2022-23 to 2026-27. In this regard, it was
submitted on coming to know about the alleged fraudulent acts of the petitioner
no.2, of changing the date of AGM, the respondent no.4 had submitted a
representation dated 19.10.2021 before the respondent no.3. It was submitted
that the respondent no.4 had also filed another representation dated
12.04.2021, before the respondent no.2. It was also submitted that the
petitioners have not annexed any document in the writ petition to show that the
service of respondent no. 4 had ever been terminated as projected. It was also
submitted that the petitioner no. 2 had lodged a baseless complaint case, which
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was registered as CR Case No. 834/2022, alleging that the respondent no. 4 had
misappropriated the money of the GBPMPCS Ltd., whereas the respondent no. 4
had given a notice dated 28.12.2020, to the Vice Chairman of the said society to
return the proceeding books and all other records, which he had taken away
from the office in the month of November, 2020, which was duly served on the
then Vice President.
17) To counter the allegations made in respect of the respondent
no.4, by referring to the statements made in the affidavit-in-opposition of the
respondent no. 5, the learned counsel for the respondent no.4 had made his
submissions on specific reply as well as in respect of his allegations against the
petitioner no.2, which are not elaborated herein for the reasons which would be
given later.
18) It was submitted that the AGM was held on 03.10.2021, on the
basis of forged records and therefore, the respondent no. 4 had submitted a
complaint dated 19.10.2021, before the respondent no.3, which was not
immediately acted upon due to Covid-19 pandemic. However, clandestinely, the
notice of AGM and election of the Board of Directors was issued on 01.04.2022
by the respondent no.2, although under the ACS Act, the notice is required to
be issued by the Secretary. Therefore, the respondent had submitted another
representation dated 12.04.2022 before the respondent no.3, who ordered the
Senior Inspector of Cooperative Societies to enquire into the matter. It was
submitted that the respondent no. 4 was dissatisfied with the manner in which
enquiry was made. Nonetheless, AGM and elections were held on 17.04.2022,
on the strength of a manipulated voters list with 436 names, whereas the
membership strength of GBPMPCS Ltd. was 400 only.
19) It was submitted that therefore, the respondent no. 4 had filed an
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appeal dated 25.04.2022 before the respondent no.2, to declare the Board of
Directors and all consequential acts as null and void. It was also submitted that
the said appeal was filed before approval of the AGM dated 17.04.2022 was
granted by the respondent no. 3.
20) It was submitted that the respondent no. 2 had dismissed the
appeal on 04.08.2022. However, a finding was given to the effect that the
records were tampered, but it was observed that the tampering of records could
have been done by the respondent no. 4 as the same were in his custody. It
was submitted that in the said appellate order, (i) the petitioner was referred to
as former Secretary; and that (ii) the Board was competent to remove the
Secretary; and (iii) the AGM was held on 30.09.2022.
21) Hence, it was submitted that a review petition under section
111(2) of the ACS Act was filed by the respondent no. 4 on 12.08.2022, and as
it was not taken up, the respondent no.4 had moved this Court by filing a writ
petition and this Court by order dated 05.09.2022, passed in W.P.(C) 5805/2022.
Pursuant to the said order dated 05.09.2022, the respondent no. 2, after
hearing the parties and on a perusal of records, passed an order dated
01.02.2023, with a finding that the proceeding of AGM held on 03.10.2021, was
tampered by changing the date to 30.09.2021, which was done by the
respondent no. 2, who was having the custody of the records. Resultantly, the
approval granted to the AGM was set aside and further directed to constitute
the Board of Directors as per section 41(6) of the ACS Act.
22) Accordingly, it was submitted that this writ petition deserves to be
dismissed.
Discussion and decision:
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23) Perused the writ petition, affidavit-in-opposition by the respondent
no.4, affidavit-in-reply by the petitioner, as well as documents annexed thereto.
24) In paragraphs 10 and 17 above, it has been mentioned that the
specific allegations against the respondent no. 4 and the petitioner no.2 were
not elaborated for reasons to be assigned later. The reason is that the personal
allegations made against the petitioner no.2 and the respondent no. 4 appear to
be a highly disputed questions of fact, which cannot be decided without
examining the correctness of the notice dated 04.09.2021, by which AGM cum
Election of Board of Directors was proposed on 03.10.2022 (allegedly altered to
30.09.2022); record of proceeding of the AGM, etc. Such an exercise should be
left to be done by the Registrar of Cooperative Societies, Assam; or by a Civil
Court and/or Criminal Courts, if otherwise permissible in law, and as the parties
may be so advised. This writ Court would be slow to substitute the finding of
fact by the jurisdictional authority i.e. Registrar of Cooperative Societies, Assam
(respondent no.2).
25) It is seen that on 25.04.2022, an appeal was filed by the
respondent no.4 before the respondent no.2. The prayer in said appeal was to
take action against the fake committee of the GBPMPCS Ltd., and not to provide
any approval. The said appeal dated 25.04.2022, by the respondent no. 4 was
dismissed by the respondent no.2 by order dated 04.08.2022.
26) By filing a review petition on 12.08.2022, the respondent no. 4
had prayed before the respondent no.2 to set aside the order dated 04.08.2022,
by which the appeal of the respondent no. 4 was dismissed and to further
declare that the Board of Directors was dissolved in terms of section 39 of the
ACS Act.
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27) Thereafter, this Court, by order dated 05.09.2022, passed in W.P.
(C) 5805/2022, had directed the Registrar of Cooperative Societies, Assam
(respondent no.2), to dispose of the review application filed by the respondent
no.4. Thus, it appears that the learned coordinate Bench of this Court was
aware that the appeal of the respondent no. 4 was dismissed and yet, the
learned Bench had taken a conscious decision to direct the appellate authority
i.e. the respondent no. 2 to exercise power of review under section 111(2) of
the ACS Act. The said order dated 05.09.2022 of this Court had attained finality.
28) The provision of section 111 of the ACS Act, 2007 is quoted
below:-
111. Appeal or Review- (1) Except where otherwise expressly provided to the
contrary an appeal shall lie to the Registrar from the decisions made under this Act
or Rules framed thereunder by any Government Officer liquidator appointed under
Section 95.
(2) The Registrar may review any order passed by him at any time within sixty
days from the communication of such order.
(3) Save as otherwise provided in this Act or Rules, no appeal shall lie to the State
Government against any order of the Registrar, except on a question of law, and
provided such appeal is preferred within sixty days of the communication of such
order.
(4) Any appellate authority and the Registrar in case of review may pass any stay
order pending any appeal or review before such an authority, and may award costs
against any party appealing or petitioning for review if such appeal or review
petition is considered false, vexatious or frivolous by the authority concerned.
(5) Notwithstanding anything contained in this ,Act where with the previous
sanction in writing or on requisition by the Reserve Bank of India, a Cooperative
Bank-
(a) is being wound up; or
(b) in respect of which a scheme of amalgamation or reorganization is given
effect, no appeal thereof shall lie or be permissible without the sanction or
requisition of the Reserve Bank and that shall not be liable to be called in
question.
29) The learned counsel for the petitioner had urged that the power
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of review must be exercised as per the provisions of section 114 read with
Order XLVII, Rule 1 CPC. In this regard, it appears from the provision of sub-
section (2) of section 111 of the ACS Act that the said provision does not put
any fetters on the power of the respondent no. 2 while exercising power of
review. If the State Legislature was having any such intention, then the
Legislature would have prescribed such limitation, which was not done.
30) Thus, the respondent no.2, in terms of the said order dated
05.09.2022, passed in W.P.(C) 5805/2022, exercised power for review and had
set aside the approval order dated 09.10.2021, with a direction to constitute the
new Board Directors under section 41(6) of the ACS Act.
31) The contention of the learned counsel for the petitioners that the
exercise of power of review was not proper, if accepted, would amount to
entertaining a collateral and/or veiled challenge to the order dated 05.09.2022,
passed by this Court in W.P.(C) 5805/2022, which has otherwise attained finality.
The petitioners had accepted the notice of review and participated in the
hearing of the review petition and this, allowed the said order of this Court
dated 05.09.2022 to attain finality.
32) Therefore, in light of the discussions above, this writ petition fails
and accordingly, this writ petition is dismissed.
33) Before parting with the records, it is seen that the last AGM and
Election of the Board of Directors for the cooperative tenure of 2022-23 to
2026-27 was held on 17.04.2022, which was approved by respondent no.3 on
02.05.2022, and the First Meeting of the Board of Directors was held on
08.05.2022, which was also approved by respondent no.2 on 08.05.2022. The
appeal of the respondent no. 4 was dismissed by order dated 04.08.2022, and
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the review by respondent no. 4 was allowed by order dated 01.02.2023.
Therefore, the Court is of the considered opinion that the members of the Board
of Directors of the erstwhile Board for the tenure 2022-23 to 2026-27 including
the petitioner no. 2, have been able to demonstrate that their new Board was
constituted, which was later on found non est, the Members of the erstwhile
petitioner no.1 and the petitioner no.2 shall not be debarred by the respondent
nos. 2 and 3 from contesting the fresh election for the Board of Directors of
GBPMPCS Ltd.
34) There shall be no order as to cost.
JUDGE
Comparing Assistant
