High Court · 2009

Mr. J. Abedin, learned counsel has entered appearance by filing a caveat on beh alf of Abdul Ali, who was the contesting candidate for the office of the Chairma n of the said Society in the last AGM held on 16.11.2008. Although Abdul Ali is not impleaded as a party Mr. Abedin has been heard in the matter. The undisputed facts pertaining to this proceeding are as follows : The Difula Co-operative Society Ltd., is the registered society under the Assam Co-operative Societies Act. The election for constituting the members of the adm inistrative council/managing body and other members of the society were not held for the last 15 years. Consequently the matter was brought to the notice of the court by filing W.P.(C) No. 2744/2008 wherein this Court vide order dated 22.08 .2008 directed the adhoc committee to hold the AGM/Election of the Society. On s uch direction when the process for election was initiated challenging the change of venue of the AGM proposed to hold the AGM/Election at the place other than t he office of the society, W.P.(C) No. 4742/2008 was filed by other shareholders but due to issuance of the notice of the election and as there was little time i n hand, no interference regarding such change of venue was made. Accordingly the AGM/Election of the Society was held on 16.11.2008 in the notified place. In th e said AGM, the offices of the other office bearers including the Chairman excep t the office of the Vice Chairman was elected and the proceeding of the AGM was forwarded for necessary approval to the Assistant Registrar of Co-operative Soc ieties, Nagaon, accordingly accorded his approval on 28.11.2008. The approval to the resolutions were accorded on the basis of the report submitted by the Senio r Inspector of Co-operative Societies who was appointed as Retur ning Officer to hold the election. Upon such approval the present petitioner who was elected for the office of the chairman of the Society started functioning. Immediately vide impugned order dated 15/16.12.2008, respondent no. 2 cancelled the approval so accorded to the resolutions adopted in the AGM electing the bod y except the office of the Vice Chairman. The said order was passed on account o f certain allegations regarding the irregularities as alleged and published in t he Daily Assamese Newpaper(Asomiya Pratidin dated 18.11.2008) and on the basis o f the enquiry conducted by the Joint Registrar of Co-operative Societies who wa s entrusted for that purpose by the Registrar. These facts are not disputed by t he learned counsel for the petitioner. Also the connected records also produced by the G.A. disclose these facts. From the officials records so produced it reveals that on the date of election a fter counting of the ballot papers certain Nos. of ballot papers were taken away by the miscreants with the help of police and accordingly certain untoward situ ation arose. The Joint Registrar of Co-operative Societies vide order dated 18.1 1.2008 though appears to have issued a letter dated 19.11.2008 from the records it cannot be said that the said letters were actually served upon the Chairman o f the Society, the present petitioner. There is no proof of service of such noti ce. The Joint Registrar during his enquiry recorded the statements of Sri Rup Ra njan Das as one man committee of the Society, Mr. Qutub Udding Ahmed, a candidat e for the chairman, Abdul Qadir. Mr. M. Kalita also considered the report of th e Presiding Officer of the election Sri Ranju Kumar Kalita. From the statements of the aforesaid records it is seen that after the counting of the ballot papers were over for the office of the Vice Chairman of the Society, 231 Nos. of count ed ballot papers were taken away by the miscreants with the aid of police. There was no such allegation of snatching of such ballot papers with regard to the of fice of the chairman or other office bearers of the Society. In the said report it also transpires that the election of the AGM/Election of the Society was not in conformity with the High Court’s order and the Joint Registrar, the Enquiry Officer was of the view that the AGM/Election of the Society was completed and t he managing body was elected by the Returning Officer to be constituted without the office of the Vice chairman which is in contravention of the provisions of the Act and Bye-laws of the Act. The Enquiry Officer submitted his report before the Registrar and the Registrar after perusal of the said report cancelled the approval vide impugned order dated 15/16.12.2008. Section 60 of the Assam Co-operative Societies Act empowers the Registrar to hol d an enquiry or direct some person authorized by him by order in writing in this behalf, to hold an enquiry into the constitution, working and financial conditi on of a registered society, at any time, of his own motion or shall at the reque st of the administrative head in charge of the Civil Sub-division of other Admin istrative Area. After completion of the enquiry the Registrar is to communicate the report of th e Enquiry Officer to the Society as well as to the person at whose request such enquiry was made. It is noteworthy that in the instant case the said enquiry was conducted by the Registrar on his own on the basis of the report published in t he Assamese Newspaper. If on the basis of the enquiry so conducted, the Registra r wants to take action, he is empowered to do so under the provisions of Section 36 of the Act. Section 36 inter alia provides that when the Registrar is satisfied, after an in spection or enquiry under Section 60 for reasons to be recorded in writing, that the Administrative Council, managing body or any committee of a society is not functioning properly in accordance with this Act, rules or bye-laws, he may afte r giving the offending body an opportunity to state its case, direct under Claus e (d) of Sub-Section (1) of Section 33, that a special meeting of the General As sembly be called within a time to be specified to dissolve Administrative Counc il, managing body or committee concerned and to elect a new one. The Registrar i s also empowered under the proviso to Section 36 to take as an emergent measure to suspend the offending body forthwith he may do so h and shall appoint person or persons, on certain conditions a prescribed by him, to be in full control of the suspended body until a new body has been elected or action has been taken in accordance with Section 37. new lection is held or the new body elected under Section 30. Against such an order an appeal is also provided under Section 36(3) of the Act before the Provincial Government. In the instant case after receipt of the enquiry report the Registrar of Co-operative Societies instead of proceed ing with Section 36 by providing an opportunity to the elected body to state its case regarding the anomalies found in the enquiry straightway cancelled such ap proval so accorded by the Assistant Registrar on 29.11.2008. The Assistant Regis trar was empowered under the delegated the power to accord such approval to the proceedings of the AGM/Election under the provision of the Act or bye-laws no su ch provision has been retained to cancel such approval once given. Of course und er Section 36 of the Act after making an enquiry under Section 60 such elected body if election found to be hold illegal or irregular may be cancelled in the s pecial general meeting to be held for that purpose as provided under Section 36 and not otherwise. Accordingly the action taken by the Registrar is contrary to the provision of Section 36 of the Act and the said impugned order is apparently passed in gross violation of the principles of Natural Justice. The impugned ac tion having been taken without according the opportunity to the petitioner elec ted as chairman to state his case. After stating its case affected by the office of such persons the Registrar is empowered to direct under Clause (d) of sub-se ction (1) of Section 33, that a special general meeting be called within a time to be specified to dissolve the Administrative Council, managing body or commit tee concerned and to elect a new one but that has not been done in the instant c ase. In view of the above discussions, the action taken by the Registrar is quite con trary to the provisions of law and the same cannot have legal approval. Accordin gly the impugned order dated 15/16.12.2008 stands set aside and quashed. The matter is remanded back to the Registrar who will be entitled to take necess ary action on the basis of the enquiry report submitted by the Joint Registrar, under Section 36 of the Act by providing necessary opportunity to the petitioner . In view of the setting aside the impugned order dated 15/16.12.2008, the petitio ner would be entitled to function as Chairman of the Society till such time of d isposal the proceedings that might be initiated under Section 36 of the Act. It is submitted by Mr. Abedin that after passing of the impugned order dated 15/ 16.12.2008, the Registrar has passed another order on 22.12.2008 thereby appoint ing the one departmental officer viz. Sri Parag Moni Bhuyan, Senior Inspector of Co-operative Society, Nagaon as one man adhoc committee in exercise of power u nder Section Section 32(5) of the Act is necessarily the consequential order to the impugned order dated 15/16.12.2008. Since the impugned order has already bee n cancelled, the aforesaid consequential order dated 22.12.2008 also stands quas hed and the petitioner would be entitled to function as Chairman of the Society. The writ petition is allowed to the extent indicated above.