High Court
Case Details
WA 319/2013 BEFORE HON’BLE MR.JUSTICE K.SREEDHAR RAO HON’BLE MR. JUSTICE B.D.AGARWAL (K Sreedhar Rao, J)
Facts
The above appeals are inter-related. Writ Appeal No.319/13 is filed by t he members of the society against the managing body seeking a declaration that t he managing body has not convened the first Annual General Meeting as required under law. Therefore, the managing body stands automatically dissolved by decla ration of Section 39 of the Co-operative Society Act (for short-Act). The Writ Appeal No.330/13 is filed by the managing body against the interim orde r of the learned single judge wherein it was held that the term of the appellant managing body would expire by 31.3.2012. The fact matrix discloses that the election to the society in question was held on 25.10.2009 and the counting was started on the next day but because of unruly interruption counting could not be completed and the same was deferred. In that regard WP' No.4676/2009 and WP' 4908/2009 were filed by some of the members of the society. The first petition is filed for holding fresh election and the seco nd petition is filed for a direction to hold the counting and to declare the res ult of the successful candidates. The second writ petition was argued and the le arned Single Judge of this court on 10.2.2012 directed to proceed with the count ing and for declaration of the result. Since there was order for counting was ma de the other writ petition No.4676 of 2009 was disposed of as infructuous. The counting was held on 29.2.2012 and results were declared on the same day. The ap pellant managing committee is declared elected. The elected managing committee convened a general meeting on 7.3.2012 and the se cond general body meeting was held on 29.7.2012. On the date of the second meeti ng there was unruly situation and objections were raised that meeting was not co nvened in accordance with law and there was no official observer. Therefore, the AGM convened could not be successfully concluded and resolution was passed that the meeting was cancelled. The managing body approached the Registrar of Co-ope rative society for extending time to hold the AGM. Registrar of Co-operative Soc iety directed to hold the meeting within 29.9.2012. Accordingly, AGM was held on 28.9.2012. The Assam Co-operative Society Act, 2008 received presidential assent on 8.1.201 2 and it came into effect from 10.3.2012 vide Gazette publication on 5.3.2012. T he Assam Co-operative Societies Act, 1949 came to be repealed by the Act 2007. T he provisions of Section 39 Assam Co-operative Society Act prior to 5.2.2012 is read as follows: A general meeting to be termed as Annual General Meeting of the General Assembly of a registered co-operative society shall be held at least once in every Co-o perative year within a period of 120 days from the date of expiry of every coop erative year. The Board shall automatically stand dissolved for not holding Annu al General Meeting in accordance with the provisions of the Act and bye-laws wit hin 120 days from the date of expiry of every cooperative year. Section 39 came to be amended by Act IV on 2013 with effect from 5.2.2013 which read as follows: A general meeting to be termed as Annual General Meeting of the General Assembly of a registered co-operative society shall be held at least once in every Co-o perative year within a period of six months of close of the financial year to t ransact the business as provided in this Act. The Board shall automatically stan d dissolved for not holding Annual General Meeting in accordance with the provis ions of the Act and bye-laws within six months from the expiry of every Financia l year.
Legal Reasoning
The learned single judge of this Court in WP' NO.4908 of 2009 filed by t he appellant in WA No.319/2013 while interpreting the provisions of Section 39 h eld that the election in respect of the incumbent managing body was held in 2009 and according to the amended provision the tenure of the body being 3 years. Th e life of the body is to be reckoned from the date of election and the tenure o f the incumbent managing body should continue for the remaining period. The orde r did not clarify as to what was the remaining period for the elected body. However, in WP' No.2307 of 2013 filed by elected body it was clarified t hat the term of the incumbent managing body would expire on 31.3.2012 by an inte rim order. However, in the final order it was held that the incumbent elected bo dy will have three years terms from the date of its first meeting which means t o say that the tenure of the body would expire by 6.3.2015. The appellant in WA No.319 aggrieved by the final order has filed this appeal and against the inter im order passed in the same writ petition. WA No.330 of 13 was filed. Sri KP Sarma, learned senior counsel for the appellant in WA No.319/13 s ubmitted that the view taken by the learned Single Judge that the tenure of the incumbent managing body would expire by 6.3.2015 is incorrect. The three years p eriod of life span is to be reckoned from the date of election. If it is so the tenure of the body would expire by 31.3.2012. Secondly, it was argued that the AGM is not convened as required u/s 39. . The unamended provision prescribes AG M to be convened within a period of 4 months from of the date of election to the expiry of 120 days of every co-operative year. In this case the meeting that wa s convened on 29.7.2012 is nonest because it was not convened in accordance with law. The Registrar of Co-operative Society is not empowered under the Act to ex tend the time for holding AGM contrary to the provisions of Section 39 and that the meeting held beyond the prescribed period u/s 39 would be a nullity therefor e for want of non-compliance of the said provision, the elected body automatical ly stands dissolved by declaration of law. Hence, the present managing committee ceased to exit in view of the Section 39 and that fresh elections are to be hel d. The learned counsel for the co-operative Society submits that if the cou rt were to hold that the provision of Act 2007 the amended provisions of Section 39 which came into effect from 5.2.2013 if made applicable the tenure of the ma naging committee should have to be reckoned from the date of its first meeting a nd its tenure will have 5 years. If it is otherwise held that the tenure of the body is to be reckoned from the date of election the tenure would expire by 31.3 .2012. Sri MK Choudhury, learned counsel arguing for the appellant in WA No.313 /13 strenuously contended that the provision of the Act makes it explicit that t he tenure of the body is to be reckoned from the date of its first meeting. If i s it so in the instant case, first meeting is held on 7.3.2012 and during contin uation of the existing managing body the amendment is effected under Section 39 wherein the tenure of the body u/s 31 is enhanced from 3 years to 5 years and th e amendment is effected by way of substitution. Therefore the effect of the amen dment would relate to the date of the parent Act i.e. 10.3.2012. With regard to the AGM it was submitted that the present incumbent manag ing committee did convene AGM on 29.7.2012 but the meeting could not be successf ully held because there was no departmental observer and there was unruly situat ion. Therefore, a resolution was passed that the meeting is cancelled. It is sub mitted that when the meeting is convened and not successfully concluded it canno t be said there is a breach on the part of the managing committee in convening t he meeting. Alternatively it is argued that the AGM is held with the permission of Registrar of Co-operative Society on 28.9.2012 and the said meeting is also i n accordance with section 39. Therefore, the contention that the committee stand s dissolved is untenable. The unamended provision of Section 39 earlier provided that AGM to be he ld within the period of 120 days from the date of expiry of the co-operative yea r i.e. 1st April to 31st March of the same year. In the present case section 39 came to be amended with effect from 5.2.2013. The AGM held was prior to 5.2.2013 therefore the amended provision will not apply. AGM was to be convened within t he period of 120 days before the expiry of the calendar year. The second meeting convened could not be successfully concluded because of reasons beyond the cont rol. The record discloses that the said meeting was not voluntarily convened and it was convened at the direction of the Assistant Registrar of Co-operative Soc iety. The provision of Section 39 does not deal with the insistence of calling informa l first general body meeting. The provision of Section 39 insist only AGM once i n a year. When the tenure was 3 years then 3 AGM to be held if the tenure is 5 y ears than 5 AGM to be held in each year. In the present case immediately after t he election the managing committee convened general body on 7.3.2012. The said m eeting fully satisfy the requirement of Section 39. The AGM at the instance of R egistrar of Co-operative was convened on 29.7.2012. The said meeting could not b e successfully completed because of the unruly situation and for non-attendance of observers from the department. Therefore, a resolution was passed that the me eting is cancelled. Again the Registrar directed that AGM to be held or on befor e 29.9.2012. Accordingly, AGM is held on 28.9.2012. The unamended provison of Se ction 39 directed that outer limit of holding AGM is within the period of 120 da ys before expiry of co-operative year. Co-operative year commenced from 1st Apr il to 31st March of the said year. In this case all the three AGM held are withi n the prescribed outer limit as envisaged u/s 39 because if the outer limit is c onsidered it would be the end of November, 2012. In this case all three meetings held prior to November, 2012. Therefore, there does not appear to be any violat ion or default on the part of the managing committee and in that view the questi on of automatic dissolution as per law does not arise. The Division bench of this court in WA No.172 of 2013 in connection with a different cooperative society where election were held on 8.6.2010 while inte rpreting Section 39. It was held that the society in the cited case was entitled to full term of 5 years as per amendment and obviously from the date of its fir st meeting. It is to be noted that the amendment to Section 39 is effected by wa y of substitution. It is well settled principle in the interpretations statutes that any amendment is made by way of substitution, the amendment relates to the date of the parent Act and will have retrospective effect therefore the tenure of the present managing committee will have 5 years from the date of first meeti ng. In view of the discussions and reasons cited above WA No.319 is dismisse d and WA No.330 of 2013 stands allowed.