Gauhati High Court

Page No.# 1/12 vs The State Of Assam And Ors on 9 May, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                         Page No.# 1/12

GAHC010008812025




                                                    2025:GAU-AS:5932

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

                             WP(C)/6945/2024

         FOYZUL HOQUE MAZUMDAR AND ORS
         S/O- LATE AJOB UDDIN MAZUMDAR
         VILL- RAJYUSWARPUR PART - VII
         P.O- KATAGAON
         P.S- LALA
         DIST- HAILAKANDI
         ASSAM

         2: MD. MOTIBUR RAHMAN MAZUMDAR
         S/O- LATE ASMAN ALI MAZUMDAR
         VILL- RAJYUSWARPUR PART - VII
          P.O- KATAGAON
          P.S- LALA
          DIST- HAILAKANDI
         ASSAM

         3: MINA BEGUM LASKAR
         W/O- MALIK USTAR LASKAR
         VILL- RAJYUSWARPUR PART - VII
         P.O- KATAGAON
         P.S- LALA
         DIST- HAILAKANDI
         ASSAM

         4: ASAB UDDIN LASKAR
         S/O- LATE TOSIR ALI LASKAR
         VILL- RAJYUSWARPUR PART - IV
         P.O- KATAGAON
         P.S- LALA
         DIST- HAILAKANDI
         ASSAM

         5: RANJIT ROY
         S/O- RABINDRA ROY
                                                    Page No.# 2/12

VILL- RAJYUSWARPUR PART - V
P.O- KATAGAON
P.S- LALA
DIST- HAILAKANDI
ASSAM

6: SULTANA BEGUM LASKAR
W/O- LATE MOSTAFA AHMED LASKAR
VILL- RAJYUSWARPUR PART - VII
P.O- KATAGAON
P.S- LALA
DIST- HAILAKANDI
ASSAM

7: ABDUL HALIM MAZUMDAR
S/O- ILIAS ALI

VILL- RAJYUSWARPUR PART - VI
P.O- KATAGAON
P.S- LALA
DIST- HAILAKANDI
ASSAM

8: UBAIDULLA BARBHUIYA
S/O- LATE MONFOR ALI BORBHUIYA
VILL- RAJYUSWARPUR PART - VII
P.O- KATAGAON
P.S- LALA
DIST- HAILAKANDI
ASSAM

9: MOHMMAD ALI ZULFIKAR LASKAR
S/O- RAJOB ALI LASKAR
VILL- RAJYUSWARPUR PART - VII
P.O- KATAGAON
P.S- LALA
DIST- HAILAKANDI
ASSAM
VERSUS

THE STATE OF ASSAM AND ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM
COOPERATION DEPARTMENT
DISPUR
GUWAHATI-781006

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

            ASSAM
            KHANAPARA
            GUWAHATI-781022

            3:THE ZONAL JOINT REGISTRAR OF COOPERATIVE SOCIETIES

            SILCHAR
            ASSAM.

            4:THE ASSTT. REGISTRAR OF COOPERATIVE SOCIETIES

            HAILAKANDI ASSAM

            5:JISHU KUMAR NATH
            EX SECRETARY

            RAJYUSWARPUR COOP. SOCIETY LTD

            VILL AND P.O- UMEDNAGAR
            P.S- LALA
            DIST- HAILAKANDI
            ASSAM
            ------------

Advocate for : MR B SINHA Advocate for : SC CO OP appearing for THE STATE OF ASSAM AND ORS

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER [ORAL] 09.05.2025

The instant writ petition under Article 226 of the Constitution of India is preferred inter-alia to assail an Order dated 11.12.2024 passed by the respondent no. 3 in an appeal preferred by the respondent no. 5 on 10.12.2024 against an Order dated 07.12.2024 passed by the respondent no. 4.

2. By the impugned Order dated 11.12.2024, the respondent no. 3 had admitted the appeal preferred by the respondent no. 5 under Section 111[1] of the Assam Page No.# 4/12

Cooperative Societies Act, 2007 and passed an interim direction. By the impugned Order, the respondent no. 3 while admitting the appeal, had stayed the Order dated 07.12.2024 passed by the respondent no. 4 whereby the respondent no. 4 had accorded approval to a resolution passed by the Board of Directors of M/s Rajweswarpur Samabay Samity Limited, District-Hailakandi as the Secretary. The respondent no. 3 had further observed that the interim order of stay would remain in operation till the disposal of the appeal preferred by the respondent no. 5 under Section 111[1] of the Assam Cooperative Societies Act, 2007 ['the Act, 2007' and/or 'the 2007 Act', for short].

3. The facts leading to the institution of the writ petition can be narrated, in brief, at first. The petitioners, nine in nos., have approached this Court stating that they have a common cause of action. The petitioner no. 1 to petitioner no. 8 are Directors in the Board of Directors of M/s Rajweswarpur Samabay Samity Limited, District - Hailakandi ['the Society', for short], a cooperative society registered under the provisions of the Act, 2007. The petitioners have stated that the petitioner no. 1 to petitioner no. 8 got elected to the Board of the Society in an Annual General Meeting [AGM]/Election, held on 18.07.2022, with five years tenure. The respondent no. 4 had approved the proceedings of the said AGM/Election on 21.07.2022.

4. According to the petitioners, the respondent no. 5 was earlier appointed as the Secretary of the Society. As the respondent no. 5 had attained the age of sixty years, the Board of the Society was in contemplation to remove him from the post of the Secretary of the Society and in order to pass a resolution to that effect, the Board decided to hold a Meeting on 04.12.2024. The petitioners have stated that the Meeting of the Board was held on 04.12.2024. In that meeting, the Board passed a resolution vide Resolution no. 5 to terminate the service of the respondent no. 5 as the Secretary of the Society. By the said Resolution, the Board also decided to appoint the petitioner no. 9 as the Secretary of the Society. The Board in the said Meeting also resolved about the monthly salary to be paid to the newly appointed Secretary of the Society. Though reasons are assigned in the Resolution no. 5 for terminating the service of the respondent no. 5 from the post of Secretary of the Society, in view of the issues involved in this writ petition, there appears Page No.# 5/12

no necessity to delve into those reasons. Subsequent to the Board Meeting, held on 04.12.2024, and pursuant to Resolution no. 5, a Letter of Appointment letter was issued on 05.12.2024 under the hand of the petitioner no. 1, that is, the Chairman of the Society appointing the petitioner no. 9 as the Secretary of the Society.

5. The proceedings of the Meeting of the Board, held on 04.12.2024, wherein Resolution no. 5 was taken, were sent to the respondent no. 4 for his approval. The respondent no. 4 after consideration, vide an Office Letter dated 07.12.2024, conveyed his approval to the resolution of the Board of the Society regarding allowing the petitioner no. 9 to act as the Secretary of the Society. The respondent no. 4 had further observed that the ex-Secretary, that is, the respondent no. 5 would hand over the charge of the Secretary of the Society to the petitioner no. 9 for the greater interest of the shareholders. The petitioners have further stated that pursuant to the Letter of Appointment dated 05.12.2024, the petitioner no. 9 had joined as the Secretary of the Society by submitting a joining letter on 07.12.2024.

6. Aggrieved by the appointment of the petitioner no. 9 as the Secretary of the Society and his removal from the post of Secretary of the Society, the respondent no. 5 preferred an appeal before the Registrar of the Cooperative Societies, Assam under Section 111[1] of the Act, 2007 on 10.12.2024. The appeal so filed by the respondent no. 5 on 10.12.2024, came to be considered by the respondent no. 3 on 11.12.2024. The respondent no. 3 had thereafter, on 11.12.2024, passed the impugned Order, assailed herein.

7. The respondent no. 3 in the impugned Order had, inter-alia, observed that although the Board of Directors of a cooperative society is empowered to appoint or remove a Secretary as per the provisions of the 2007 Act, but the same is to be done following the provisions of law. The respondent no. 3 observed that the matter of removal or appointment of the Secretary of the Society in the case in hand was not even amongst the agenda fixed for the Meeting of the Board convened on 04.12.2024. The respondent no. 3 further observed that there was nothing on record to show that the respondent no.

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5, the previous Secretary of the Society, was afforded with any kind of opportunity of being heard before the Board of the Society took the decision to remove him. The respondent no. 3 by observing as above, had admitted the appeal and posted the appeal for hearing on 18.12.2024. In the interim, the respondent no. 3 had stayed the approval granted by the respondent no. 4 in respect of the decision of the Board of the Society to appoint the petitioner no. 2 till disposal of the appeal filed under Section 111[1] of the Act, 2007.

8. I have heard Mr. B. Sinha, learned counsel for the petitioners; Mr. S.K. Talukdar, learned Standing Counsel, Cooperation Department for the respondent nos. 1 to 4; and Mr. P.K. Roychoudhury, learned counsel for the respondent no. 5.

9. Mr. Sinha, learned counsel for the petitioners has submitted that the issue involved herein is no longer res integra in view of a Judgment and Order rendered by this Court in the writ petition, W.P.[C] no. 925/2022 [Bikrampur Cooperative Societies Ltd. and another vs. State of Assam and others] on 13.03.2025.

10. On the other hand, Mr. Talukdar, learned Standing Counsel, Cooperation Department has submitted that the Judgment and Order dated 13.03.2025 passed in W.P. [C] no. 925/2022 [Bikrampur Cooperative Societies Ltd. and another vs. State of Assam and others] has been assailed in an intra-court appeal, Writ Appeal no. 120/2025. Mr. Talukdar has submitted that since the intra-court appeal is pending as on date, consideration of this writ petition may be kept in abeyance till a decision is rendered in the said intra-court appeal. He has pointed out that in the writ appeal, Writ Appeal no. 120/2025, notices have already been issued to the respondents on 05.05.2025.

11. Mr. Roychoudhury, learned counsel appearing for the respondent no. 5 has fairl submitted that the submissions of Mr. Sinha and Mr. Talukdar cannot be disputed.

12. It is settled that the right to appeal is a statutory right and is not an inherent right. Thus, a right to appeal is to be conferred by the statute. It is within the discretion of the legislature to decide whether the right to appeal should be provided for and if provided Page No.# 7/12

for, whether such right to appeal is to be unconditionally given to an aggrieved party or is to be given with certain riders or conditions or is to be given only against certain category of orders. In other words, a right to appeal can be conditional or qualified. Without a statutory provision creating a right to appeal a person, even if aggrieved, is not entitled to prefer an appeal. It is also a settled proposition that existence of the jurisdictional fact is sine qua non for a statutory authority to assume jurisdiction on a particular manner. It is trite law that an authority can assume jurisdiction on a particular matter when such jurisdiction to entertain and adjudicate has been vested in such authority. In other words, to exercise a jurisdiction on a particular subject-matter, such jurisdiction has to be conferred by the governing statute. Law does not permit any statutory authority to assume jurisdiction on a subject-matter on any ground whatsoever, in case, such authority does not have the jurisdiction on the subject-matter.

13. The subject-matter in Bikrampur Cooperative Societies Ltd. [supra] was also regarding removal of a Secretary of a registered cooperative society and the issue was considered in the light of the provisions of the Act, 2007. An order passed by the Registrar of Cooperative Societies, Assam was put to challenge on the ground that the Registrar without having jurisdiction to entertain and adjudicate in a matter involving appointment and removal of a Secretary of a registered cooperative society, had assumed jurisdiction purportedly exercising powers conferred under the provisions of the Act, 2007, especially under Section 111 and/or Section 92 and/or Section 45[2][l] thereof.

14. For ready reference, the relevant excerpts from the decision in Bikrampur Cooperative Societies Ltd. [supra] are quoted hereinbelow : -

71. Section 45 of the Act, 2007 has inter-alia prescribed that every cooperative society shall record in the minute books proceedings of every general meeting, delegate general body meeting and board meeting. The provision of Section 45 further requires that the proceedings of all General Meetings and Special General Meetings of every cooperative society shall be sent to the Registrar within fifteen days from the date of completion of such Page No.# 8/12

meetings. The Registrar shall give his approval on the resolutions within fifteen days of receipt of the proceedings. If no approval is received within the aforesaid period, the proceeding shall be deemed to have been approved. Section 45 is, however, silent on the aspect of sending the proceedings of any board meeting of a cooperative society to the Registrar for approval. If as per the statutory prescription approval is required, the order which is required to be approved by a statutory authority like the Registrar does not become effective unless the approval is accorded. It is not specifically laid down in the 2007 Act that the board of a registered cooperative society after passing an order of removal of its Chief Executive/Secretary, would need the approval of the Registrar, to make the order of removal effective. In the case in hand, had the order of removal of the respondent no. 4 dated 01.12.2021 passed by the Board of M/s Bikrampur Society required prior approval of the Registrar to make the order of removal effective, the order of removal would have been vulnerable in the absence of approval of the Registrar and the validity and legality of the impugned Order dated 10.01.2022 would have been different. But, such is not the case here. With power to remove the Chief Executive/Secretary of a cooperative society vested by the 2007 Act only in the Board of such society without any other rider, it is not open for any other authority like the Registrar, outside the society to enforce any bye-law on the ground of its non-compliance with the power to appoint and also to remove its Chief Executive/Secretary statutorily vested only in the Board of M/s Bikrampur Society and the Board having taken a decision to remove the respondent no. 4 from the post of Chief Executive/Secretary, any bye-law not in conformity of the provisions of the 2007 Act cannot stand in the way in terminating the contractual employment of the respondent no. 4 and non-compliance of any bye-law would not invalidate the power of removal exercised by a validly constituted Board of M/s Bikrampur Society in a meeting having the requisite quorum. No other authority including the Registrar under the Act, 2007 is empowered to nullify such decision of the Board regarding termination of its employees including the Chief Executive/Secretary.

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72. Summing up, this Court has found that the Registrar appointed under Section 3 of the 2007 Act - either by Section 49[2][l] or by Section 92 or by Section 111 of the 2007 Act - has not been vested with any power, authority and jurisdiction to decide on any decision taken by a validly constituted Board of a registered cooperative society either in the matter of appointment or in the matter of removal of the Chief Executive/Secretary of the Society, a fulltime employee appointed by it. As such, the impugned Order dated 01.02.2022 passed by the Registrar is unsustainable in law.

15. The learned counsel for the parties are not in disagreement on the point that the subject-matter involved in this writ petition is also limited to removal of a Secretary of a registered cooperative society. A decision rendered by a Bench is ordinarily, binding on a subsequent Bench of equal strength. If the subsequent Bench expresses doubt on the correctness of the earlier decision rendered by a Bench of equal strength, then the same has to be referred to a larger Bench. This Court, after analysis of the subject-matters involved in this case and in the case of Bikrampur Cooperative Societies Ltd. [supra], has found that the issue involved in this case is covered by the decision in Bikrampur Cooperative Societies Ltd. [supra]. The issue whether there would be any requirement to provide an opportunity of being heard to the concerned person from the post of Secretary of a cooperative society has also been dealt in the referred decision.

16. On a query made to both Mr. Sinha and Mr. Talukdar as to whether the Hon'ble Division Bench has passed any order of stay in the pending intra-court appeal, Writ Appeal no. 120/2025, they have answered in the negative. They have further submitted that only notices have been issued to the respondents and no stay order has been passed staying the operation of the Judgment and Order dated 13.03.2025 passed in Bikrampur Cooperative Societies Ltd. [supra].

17. Law is also settled that a Single Bench cannot ignore the ratio laid down in an earlier judgment merely because the issue is pending before a larger Bench. Judicial propriety does not permit it to ignore the ratio laid down by a Bench of equal strength as Page No.# 10/12

no decision has come yet from the larger Bench. It has been held in Union Territory of Ladakh and others vs. Jammu & Kashmir National Conference and another, [2023] 12 SCR 68, that the High Courts have to proceed to decide matters on the basis of the law as it stands. It is not open unless specifically directed by a higher court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later coordinate Bench. It has been observed by the Hon'ble Supreme Court in Rajnish Kumar Rai vs. Union of India and others, 2023 INSC 862, to the effect that judicial propriety does not permit to ignore a ratio laid down in a judgment of a Bench of equal strength as no decision has come out from the larger Bench. In view of such proposition of law, the submission made by Mr. Talukdar, learned Standing Counsel, Cooperation Department for awaiting of the outcome of the intra-court appeal, Writ Appeal no. 120/2025 is not acceptable.

18. In the course of hearing, another issue came to light. The proceedings of the Board Meeting, held on 04.12.2024, was approved by the Assistant Registrar of Cooperative Societies, District - Hailakandi [the respondent no. 4]. It prima facie appears that the said proceedings of the Board Meeting was approved by the respondent no. 4 exercising power purportedly under Section 45[1] of the Act, 2007, delegated to him pursuant to a Notification dated 23.05.2012. Section 45 of the Act, 2007 is on the subject- matter, 'Minutes of Proceedings of Meetings'. As per sub-section [1] of Section 45, every cooperative society shall record in the minutes books proceedings of every general meeting, delegate general body meeting and Board meeting and the names of the members or delegates present thereat and shall be confirmed at the same or the next meeting. The proceedings of all general meetings and special general meeting of every cooperative society are required to be sent to the Registrar within a period of fifteen days, as stipulated therein, and the Registrar is to give his approval on the resolution within a period of fifteen days, as stipulated therein. It is mandated therein that if no approval is received within the aforesaid period, the proceedings shall be deemed to have been approved.

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19. As per Section 2[cc] of the 2007 Act, 'Registrar' means the officer appointed by the State Government under Section 3 to perform the duties of the Registrar of cooperative societies under the 2007 Act. As per Section 3[1], the State Government may appoint an officer to be the Registrar of Cooperative Societies for the State or any portion of it for the registration, supervision, assistance, counsel and for the all-round development of the cooperative movement in the State with such powers and responsibilities as may be provided under the Act, 2007 or rules or bye-laws framed thereunder. Under Section 3[2] of the Act, 2007, the State Government may by a general or special order in writing, can delegate to any person or persons, all or any of the powers and responsibilities of the Registrar under the Act, 2007 which are otherwise exercisable by the Registrar under Section 3[1].

20. The matters where approval of the Registrar of Cooperative Societies are necessary, have been discussed in paragraph 71 of Bikrampur Cooperative Societies Ltd. [supra], quoted hereinabove. Section 111[1] of the 2007 Act has provided that, except where otherwise expressly provided to the contrary, an appeal shall lie to the Registrar from a decision made under the 2007 Act or rules framed thereunder by any Government officer or a liquidator appointed under Section 95 of the 2007 Act. By the Notification dated 23.05.2012 of the Cooperation Department, Government of Assam, an Assistant Registrar of Cooperative Societies has been delegated certain powers including the power to accord approval under Section 45[1] by the State Government in exercise of the power conferred by Section 3[2] of the 2007 Act. By the same Notification, the power under Section 111[1] has also been delegated to the Zonal Joint Registrar of Cooperative Societies. If that be so, it prima facie appears to this Court that the approval granted by the respondent no. 4 on 07.12.2024 is an act of the Registrar itself. In other words, the respondent no. 4 as the jurisdictional Assistant Registrar of Cooperative Societies had exercised the power under Section 45[1], which is vested in the Registrar under Section 45[1] read with Section 3[1]. If such is the position, prima facie the approval accorded by the respondent no. 4 was as a delegate of the Registrar and then, the maintainability of the appeal under Section 111[1], on which the impugned Order has been passed, itself is in doubt. Be that as it may. The said question is not decided in this case and it is kept open for consideration in an Page No.# 12/12

appropriate case.

21. As the issue involved herein is similar to the issue involved in Bikrampur Cooperative Societies Ltd. [supra] and in view of the legal proposition expounded in Union Territory of Ladakh [supra] and Rajnish Kumar Rai [supra], this writ petition is found merited. The impugned Order dated 11.12.2024 passed by the respondent no. 3 whereby the respondent no. 3 while admitting the appeal, has interfered, in the interim, with the Order of Appointment of the petitioner no. 9 as the Secretary of the Society is found unsustainable in law in view of the legal position that the appeal under Section 111[1] itself is not maintainable against any decision of the Board of a registered Cooperative Society regarding appointment or removal of the Secretary of the registered Cooperative Society. Consequently, the impugned Order dated 11.12.2024 passed by the respondent no. 3 is set aside and quashed.

22. Accordingly, the writ petition stands allowed to the extent indicated above. There shall, however, be no order as to cost.

JUDGE

Comparing Assistant