High Court · 2011

I have heard Mr. B. D. Konwar, learned counsel appearing for the petitioner. I have also heard Ms. S. Sharma, learned Govt. Advocate, Assam appe aring for the respondent Nos. 1 to 5 and Mr. A. Sarma, learned counsel appearing for the respondent No. 6.

4. Mr. Konwar, learned counsel appearing for the petitioner submits that the bye law of the petitioner society was forcefully amended by excluding certain villages from its area of operation without issuing any notice and witho ut hearing the petitioner society. He submits that not only the impugned exercis e was carried out in violation of the principles of natural justice but also wit h an oblique motive to deprive the petitioner society from getting settlement of the said No. 1 Dhar Brahmaputra Fishery.

5. Controverting the submissions of Mr. Konwar, Ms. S. Sharma, lear ned State counsel submits that the amendment was made by following the procedure as prescribed under the Assam Co-operative Societies Act, 1949 (for short (cid:28)the Act (cid:29) hereafter). She justified the impugned decision dated 20-11-2009 stating th at the petitioner society was informed about the said move and was in fact asked to take necessary steps for amendment of the bye laws. As the petitioner societ y failed to do so, the respondents had no other alternative but to proceed with the matter. Therefore, she submits that there is no violation of the principles of natural justice.

6. Mr. Sarma, learned counsel appearing for the respondent No. 6 wh ile supporting the stand of the learned State counsel further submits that the p etitioner society itself ought to have carried out the amendment, but they faile d to do so for obvious reasons and is trying to take advantage of its unamended area of operation spanning over 3(three) districts to get settlement of the No. 1 Dhar Brahmaputra Fishery (briefly (cid:28)the Fishery (cid:29) hereafter) to the exclusion of the others, including the respondent society. Contending that the petitioner so ciety was aware of the amendment process, which was started in the year 2006, he submits that in the facts and circumstances of this case, the petitioner societ y cannot complain of any violation of the principles of natural justice.

7. The rival submissions have been duly taken note of. I have perus ed the contents of the writ petition as well as the affidavit-in-opposition file d by the respondent society. I have also examined the records as produced by the learned State counsel. The process of amendment of the bye laws of the petitioner socie 8. ty, particularly the aspect relating to its area of operation was set in motion by the respondent No. 6 by submitting the application dated 13-3-2006 before the Joint Registrar of Co-operative Societies. On 27-03-2006, the District Deputy R egistrar of Co-operative Societies, Goalpara submitted parawise comments on the above application to the Registrar of Co-operative Societies, Assam. In his repo rt, the District Deputy Registrar pointed out that the petitioner society was or iginally registered with 8(eight) numbers of villages of the undivided Goalpara district but after the division of the undivided Goalpara district into 4(four) districts, only 3(three) villages fall within Bongaigaon district and out of the remaining 5, 4(four) are in Goalpara district and 1(one) in Dhubri district. He further stated that the petitioner society did not omit the villages falling wi thin the jurisdiction of the present Goalpara and Dhubri districts even after th e division of the erstwhile Goalpara district. On 5-4-2006, the Joint Registrar of Co-operative Societies (Fishery etc.), Assam directed the Assistant Registrar of Co-operative Societies, North Salmara to take steps to exclude the area of o peration of the petitioner society falling under Goalpara and Dhubri districts b y amending the bye laws of the petitioner society in the interest of the share h olders of both the petitioner society and the respondent society. It was stated that the said direction had the approval of the Registrar of Co-operative Societ ies. By letter dated 22nd/23rd September, 2008, the Office of the Registrar of C o-operative Societies, Assam wrote to the Government of Assam in the Co-operatio n Department seeking permission for amending the bye laws of both the petitioner society and the respondent society. Such permission was granted by the Governme nt. The same is contained in the letter dated 10-11-2009 addressed to the Regist rar of Co-operative Societies, Assam. The contents of the said letter is quoted hereunder: (cid:28)***** With reference to your letter on the subject above, I am directed to say that it appears that the Kachudola Fishery Coop. Society Ltd. which was registe red in 1976 had jurisdiction covering area of Bongaigaon, Dhubri and Goalpara Di strict. After creation of the new districts the area of operation of Kachudola F ishery Coop. Society has to be limited to Bongaigaon Dist., not only for adminis trative purpose but also because a society of Goalpara District namely Manas Pad mabari Jinjiram Fishery Coop. Society Ltd. has requested for incorporation of a rea of Kachudola Fishery Coop. Society Ltd. which is in Goalpara District. You are, therefore, requested to examine the matter exercising the power s conferred under Section 14(2) (V) of the Assam Coop. Societies Act, 1949 and t o do the needful as deemed fit.***** (cid:29). Following the same, the impugned order dated 20-11-2009 was issu ed by the Office of the Registrar of Co-operative Societies, Assam. By the said order, the bye law No. 3 of the petitioner society was amended and the area of o peration has been confined to 4(four) villages instead of the 8(eight) villages earlier. The certificate of registration of the amended bye law No. 3 has also b een issued, which is reproduced below: (cid:28)Certificate of Registration of Bye-Law No. 3 of Kachudola Fishery Co-op. Society Ltd. In the Office of the Registrar of Co-op. Societies, Guwahati under the A ssam Co.op. Societies Act, 1949 (Act-I of 1950). I do hereby certify that in pursuant of the Assam Co-op. Societies Act, 1949 (Act-I of 1950), the amendment of Bye-Law No. 3 area of operation of (cid:28)Kachu dola Fishery Co-op. Society Ltd. (cid:29) is registered by me on 20th November, 2009 und er Section 13(3) of the Assam Co-op. Societies Act, 1949. The existing Bye-Law No. 3 of (cid:28)Kachudola Fishery Co-op. Society Ltd. (cid:29) be amended as follows:- Bye-Law No. 3 Area of operation

1. Kachudola 2. Kabaitari 3. Chalantapara(Malopara) 4. Buraburi Registrar of Co-op. Societies, Assam, Khanapara, Guwahati-22 (cid:29) Sd/-

9. From a perusal of the record it is seen that pursuant to the dir ection of the Joint Registrar of Co-operative Societies (Fishery etc.), Assam da ted 5-4-2006, as referred to above, the Assistant Registrar of Co-operative Soci eties, North Salmara by his letter dated 20-5-2006 wrote to the petitioner socie ty to amend its bye laws pertaining to the area of operation by excluding those villages situated outside the Bongaigaon district. By the letter dated 28-8-2006 , the Assistant Registrar of Co-operative societies, North Salmara informed the Registrar of Co-operative Societies, Assam that the petitioner society had held its Annual General Meeting on 25-06-2006 but by resolution No. 7 it did not agre e to exclude the villages falling under Goalpara and Dhubri districts. From the resolution No. 7 adopted in the Annual General Meeting of the petitioner society on 25-6-2006, which is on record, it is seen that the members were not agreeabl e to such exclusion and they entrusted the President and Secretary of the petiti oner society to apprise the departmental authority in this regard.

10. Therefore, the contention of Mr. Konwar that the entire exercise to amend the bye laws of the petitioner society was carried out behind its back and that the petitioner society was kept totally in the dark is not correct. At this stage, let us have a look at the relevant provisions of 11. the Act dealing with such amendment. Section 13(1) of the Act provides that no a mendment of the bye laws of a registered society, whether by way of addition, al teration, omission, rescission or change of name shall be valid until such amend ment has been registered under the Act. Section 13(2) deals with a situation whe re such amendment is sought for by the concerned society itself. Section 14 of t he Act deals with a situation where an amendment of the bye laws of a registered society is carried out by the Registrar of Co-operative Societies when it appea rs to him that in the interest of the society or of the co-operative movement as a whole or for the purpose of bringing about uniformity in the main with the pr ovisions of the bye laws of societies, which have similar objects or functions, such an amendment is necessary. However, before making such amendment, the conce rned society is required to be given an opportunity of representing its case if it falls to make such amendment within the time specified. Section 15 of the Act deals with division and amalgamation of a registered Society. Sub-Section (1) o f Section 15 deals with a situation where any registered society resolves to div ide it into 2(two) or more societies. Sub-Section (2) of Section 15 refers to a situation where two or more registered societies resolve to amalgamate into one society. Sub-Section (3) of Section 15 is quite relevant for our purpose and the same is quoted hereunder: (cid:28)(3)(a) Notwithstanding anything contained in sub-sections (1) and (2) of this S ection if the Registrar is of opinion that for reason of ensuring economic viabi lity of any registered society or societies or avoiding overlapping or conflict of jurisdictions of registered societies in any area or in order to secure prop er management of any Co-operative society, or in the public interest or in the i nterest of the Co-operative movement in the State as a whole, or in the interest of depositors and the Co-operative banking system in the State as a whole, it i s necessary to divide, amalgamate or merge fully or partially any such society o r societies with any specified society, he may, by an order published in the off icial Gazette make a scheme for division, amalgamation or merger, with prior app roval of the State Government. ***** (cid:29) Coming to Rule 11 of the Assam Co-operative Societies Rules, 195 3 (briefly (cid:28)the Rules (cid:29) hereafter), it is seen that if the society proposes to fi le any objection against the proposed amendment, its case shall be represented b efore the Registrar within fifteen days of the meeting of the General Assembly a nd the Registrar after considering the objection, may either withdraw the direct ion for amendment or register the same.

12. From a conjoint reading of the aforesaid provisions of the Act a nd the Rules, it transpires that the requirement is that the concerned society i s to amend the bye laws itself by taking necessary steps but if it has any objec tion, it has to submit its objections before the Registrar of Co-operative Socie ties. In the instant case, though the share holders of the petitioner society ob jected to the amendment and had asked the President and Secretary of the petitio ner society to apprise the Registrar of Co-operative Societies, no such steps, i t appears, were taken by the petitioner society. Therefore, it cannot be said th at the impugned order has been passed in violation of the principles of natural justice. However, considering the fact that exclusion of the villages by way of the impugned amendment would have a considerable bearing on the viability of the petitioner society, it would meet the ends of justice if a post-decisional hear ing is given to the petitioner society. Such hearing should be given within a pe riod of 45 days from today. Since the petitioner society is before the court, no further notice is required to be issued to the petitioner society by the office of the Registrar of Co-operative Societies, Assam. The representatives of the p etitioner society and the respondent society shall appear before the Registrar o f Co-operative Societies, Assam on 1-12-2011, on which date the Registrar of Co- operative Societies shall fix a date of hearing within the period specified abov e. The impugned order dated 20-11-2009 and the amended certificate of registrati on shall be subject to the out come of the hearing.

13. Though an endeavour was made by the petitioner society to link u p this matter with the settlement of the fishery, the process of which is the s ubject matter of challenge in another proceeding i.e. W.P(C) No. 872 of 2011, I see no reason to join the 2(two) issues. Consequently, the interim order passed on 9-4-2010 directing not to proceed further with the tender for settlement of t he fishery, stands vacated.

14. d above. No cost. Writ Petition is disposed of in terms of the directions indicate