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2004 DIGILAW 646 (GAU)

Registrar of Co-operative Societies v. Krishna Kanta Kalita

2004-12-22

D.BISWAS, RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. Both the writ appeals being directed against the judgment and Order dated 29.09.2004, were heard analogously and are being disposed of by this common judgment and Order. 2. The Assam Co-operative Apex Bank Limited (hereinafter referred to as the Bank) is a body corporate registered under the provisions of the Assam Co-operative Societies Act, 1949 (hereinafter referred to as the Act.) Under Section 32(1) of the Act, the Annual General Meeting of a registered society is required to be held at least once in every cooperative year. The outer limit of time for holding such a meeting, under the provisions of Sub-section (2), is 60 days from the date of expiry of the preceding co-operative year, subject to such extended time as may be allowed by the Registrar under Sub-section (3). In the event the Annual General Meeting is not held within the period of 60 days as mentioned in Sub-section (2) or within the extended time as maybe allowed by the Registrar, Sub-section (4) contemplates dissolution of the Administrative Council/Managing Body of the Society with effect from the date of expiry of the period stipulated. Under Sub-section (5) of Section 32 of the Act, following the dissolution of the Administrative Council/Managing Body of a registered Society, the Registrar has been empowered to appoint an Officer or Officers or an adhoc body to manage the affairs of the Administrative Council/Managing Body till the election of a new body. However, the Officer or Officers or adhoc body appointed by the Registrar under Sub-section (5) is required to hold the Annual General Meeting within a period of 90 days of their appointment, subject to such extension of time, not exceeding one year, as may be granted by the State Government. This is contemplated by Sub-section (6) of Section 32. 3. The co-operative year, admittedly, commences from 1st of April of the English Calendar and ends on 31st March. For the year 2003-2004, the Annual General Meeting of the Bank, under the provisions of Section 34(2), was, therefore, due on or before 31.05.2004. By an order dated 18th May 2004 passed by the Registrar of Co-operative Societies, extension of time for a period of 30 days with effect from 31.05.2004 for the purposes of holding the Annual General Meeting of the Bank was allowed under the provisions of Section 32(3) of the Act. By an order dated 18th May 2004 passed by the Registrar of Co-operative Societies, extension of time for a period of 30 days with effect from 31.05.2004 for the purposes of holding the Annual General Meeting of the Bank was allowed under the provisions of Section 32(3) of the Act. In terms of the extension granted by the Registrar, the Annual General Meeting of the Bank was, therefore, required to be held on or before 29.06.2004. After the extension of time for holding the Annual General Meeting was granted by the Registrar on 18.05.2004, the Chairman of the Bank addressed a letter dated 31.05.2004 to the Principal Secretary to the Government of Assam, Co-operative Department, requesting the said authority to invoke the power under Section 92 of the Act and exempt the Bank from the operation of Section 32 of the Act until May 2005 so that the Annual General Meeting of the Society can be held at any time within May 2005. Though there is some dispute between the parties as to whether the aforesaid request made on behalf of the Bank was responded to by the State Government or not, it appears that on 8th of June 2004, the Managing Director of the Bank addressed a letter to the Registrar stating that it would not be possible for the Bank to hold its Annual General Meeting within the extended time i.e. 29.06.2004. On receipt of the said letter the Registrar, on the body of the letter of the same date sent by the Managing Director, recorded the view that in view of the clear declaration made by the Managing Director of the Bank to the effect that the Annual General Meeting cannot be held within the period of extension granted, there is no other alternative but to dissolve the Administrative Council/Managing Body of the Bank. Thereafter the order dated 09.06.2004 was issued by the Registrar declaring that the Administrative Council and the Managing Body of the Bank stands dissolved by operation of Section 32(4) of the Act. By the same order dated 09.06.2004, the Registrar constituted an adhoc body consisting of the persons named therein as per the provisions of Section 32(5) of the Act and further vesting in the said adhoc body the duty to hold the Annual General Meeting to elect a new Administrative Council/Managing Body within the period of 90 days. 4. By the same order dated 09.06.2004, the Registrar constituted an adhoc body consisting of the persons named therein as per the provisions of Section 32(5) of the Act and further vesting in the said adhoc body the duty to hold the Annual General Meeting to elect a new Administrative Council/Managing Body within the period of 90 days. 4. Aggrieved, one Krishna Kanta Kalita claiming to be a shareholder of the Bank approached this Court by instituting a writ proceeding registered and numbered as W.P.(C) No. 4044 of 2004. By order dated 10.06.2004, the writ petition in question was entertained and an interim order was passed suspending the operation of the order of the Registrar dated 09.06.2004. The matter, thereafter, was heard by the Learned Single Judge and judgment was delivered on 29.09.2004 setting aside the impugned order dated 09.06.2004 and directing the Administrative Council/Managing Body which continued to remain in office by virtue of the interim order dated 10.06.2004, to hold the Annual General Meeting of the Bank within a period of 21 days from the date of the judgment i.e. 29.09.2004. Aggrieved, the Registrar of Co-operative Societies as well as the Respondent No. 3 in the writ petition i.e. Managing Director of the Bank have instituted the two appeals in question which are presently being considered by us. 5. We have heard Mr. A.M. Mazumdar, and Mr. R.K. Goswami, learned senior Counsels appearing on behalf of the Appellants in Writ Appeals No. 382/2004 and 384/2004 respectively. We have also heard Mr. D.K. Mishra, learned Counsel who has appeared on behalf of the writ Petitioner Respondent Krishna Kanta Kalita. We have also heard Mr Suman Shyam, learned Counsel appearing for the Respondent No. 3/4 in both the appeals. 6. Before we proceed to consider the merits of the controversy arising in the appeals, two questions on which considerable arguments have been advanced must receive our attention. While the locus of the Respondent/writ Petitioner to maintain the challenge and to sustain the relief granted by the Learned Single Judge by way of restoration and continuance of the Administrative Council/Managing Body, has been assailed, similar doubts have been expressed on the maintainability of the appeal filed by the Managing Director and the entitlement of the said Officer to question the impugned judgment in so far as the continuation of the Administrative Council/Managing Body as ordered by the learned Single Judge is concerned. The second issue on which our consideration has been argued to be necessary is the extent of the tenure of the Administrative Council so as to determine the validity of the continuance of the said body as has been ordered by the Learned Single Judge. 7. We have noticed that the question of locus of the writ Petitioner, though raised, had been abandoned by the Respondents at the time of hearing of the writ petition before the Learned Single Judge. It is, therefore, our considered view that the said question ought not to be allowed to surface once again. In so far as the entitlement of the Managing Director of the Bank to question the legitimacy of the directions passed by the Learned Single Judge, particularly with regard to the continuance of the Administrative Council is concerned, though we ourselves have some reservations in the matter, yet as the said reservations are on the point of propriety and not on the legality of the challenge, we have thought it prudent to consider the appeal filed by the Managing Director on its own merit. In so far as the second question with regard to the period of the tenure of the Administrative Council is concerned, the issue raised is largely academic, as the dissolution of the said body has been recorded in the order dated 09.06.2004 to be by operation of Section 32(4). If the dissolution of the Administrative Council/Managing Body is really by virtue of operation of the provisions of law, the question of its tenure would hardly be relevant, perhaps, not even for the purposes of continuance of the Administrative Council, in the event, the dissolution is held to be non est in law. 8. The arguments advanced by Sri Mazumdar and Sri Goswami, learned senior Counsels for the Appellants, having disclosed a common thread, it will not be necessary for the Court to notice the said arguments separately Learned Counsels for the Appellants by placing before the Court certain records in original have submitted that after the Registrar by his order dated 18.05.2004 had granted extension upto 29.06.2004 for the purposes of holding the Annual General Meeting, the Chairman of the Bank had put in a request dated 31.05.2004 to the Commissioner and Secretary of the Department for grant of exemption to the Bank from the operation of Section 32 of the Act. In the said request the Chairman had clearly mentioned that it would not be possible for the Administrative Council/Managing Body of the Bank to hold the elections within the extended time and therefore exemption from the operation of Section 32 was sought for upto May 2005. In the meantime, the date for holding the requisite meeting of the Administrative Council for the purposes of deciding on a date for holding the Annual General Meeting was being successively adjourned and eventually on 05.06.2004, the meeting of the Administrative Council was fixed on 29.06.2004. Learned senior counsel for the Appellants have placed before the Court the provisions of Rule 34 of the Assam Co-operative Societies Rules (hereinafter referred to as the Rules) to highlight the prescribed procedure for convening a meeting of the Administrative Council which includes 15 days notice of such meeting to the Members. Placing the provisions of Rule 36(11), learned Counsels have argued that it is the duty of the Administrative Council to convene the Annual General Meeting. The provisions of Clause 28 of the byelaws which empowers the Administrative Council to summon meetings of the General Assembly as well as the provisions of Clause 35(L) (xiv) which empowers the Board of Directors to convene a meeting of the General Assembly subject to the directions of the Administrative Council have also been placed before the Court in addition to the provisions of the amended bye-laws which require 15 days notice for the Annual General Meeting to be held. Relying on the aforesaid provisions of the Rules and bye-laws, the arguments advanced is that when the meeting of the Administrative Council and the Board of Directors itself was fixed 29.06.2004 and this was so done as early as 05.06.2004, the Annual General Meeting of the Bank within the extended time became a legal impossibility, particularly in view of the requirement of 15 days prior notice for holding of the Annual General Meeting. It is in such a situation that the Managing Director of the Bank by his letter dated 08.06.2004 had brought to the notice of the Registrar that the Annual General Meeting cannot be held on or before 29.06.2004. It is in such a situation that the Managing Director of the Bank by his letter dated 08.06.2004 had brought to the notice of the Registrar that the Annual General Meeting cannot be held on or before 29.06.2004. The said facts having been pointed out to the Registrar, the Registrar took the view that it could be assumed that the Annual General Meeting cannot be held within the extended time and thereafter the impugned order dated 09.06.2004 was issued. According to learned Counsels for the Appellants, the facts highlighted by them as noticed above, left no doubt that the consequence of dissolution as contemplated by Section 32(4) of the Act became inevitable and therefore the Registrar had passed the order dated 09.06.2004. According to the learned Counsels for the Appellants, the inevitability of the consequences under Section 32(4) being apparent, waiting for the period of the extended time to be over would be a meaningless formality and therefore this Court by taking an overall view of the matter, must sustain the validity of the order dated 09.06.2004. Reliance in this regard has been placed by Sri Mazumdar, learned Counsel for the Appellant in W.A. No. 382/2004 on an Apex Court judgment in the case of Chandra Singh and Ors., Appellants v. State of Rajasthan and Anr. Respondents, reported in (2003) 6 SCC 545 , whereas Sri Goswami, learned Counsel for the Appellant in W.A. No. 384/2004 has preferred to place reliance on a judgment of the Apex Court in the case of Dwarka Nath, Appellant v. Income Tax Officer, Special Circle, D. Ward, Kanpur and Anr., Respondents reported in AIR 1966 SC 81 . The power under Article 226, learned Counsel Sri Goswami has submitted, is a versatile power that is capable of rendering justice by over-reaching and over-reaching technical flaws. 9. The second argument advanced on behalf of the Appellants which is without prejudice to what has been argued at the first instance, shortly put, is that, in any view of the matter the Administrative Council having come back to office by virtue of the interim order dated 10.06.2004, the obligation to hold the Annual General Meeting within the extended time continued. Admittedly, no Annual General Meeting was held and therefore even if the order dated 9.06.2004 is held by this Court to be premature or invalid, no Annual General Meeting having been held within the extended time, the disqualification under Section 32(4) came into effect at least from the expiry of the extended time. The Administrative Council, therefore, must be understood to have stood dissolved under Section 32(4) after 29.06.2004 and the said dissolution being by virtue of the operation of the statute, the situation could not have been reversed or altered by the Learned Single Judge. The restoration or the continuance of the Administrative Council as ordered by the Learned Single Judge has been contended to be legally fragile from the aforesaid perspective. 10. Refuting the contentions advanced on behalf of the Appellants, Sri D.K. Mishra, learned Counsel for the Respondent/writ Petitioner has minutely taken the Court through the contents of the impugned order dated 09.06.2004. Sri Mishra, by reading and re-reading the said order, has argued that the conditions mentioned in the order dated 09.06.2004 for the applicability of the operation of Section 32(4) of the Act, ex facie reveals that the consequences contemplated under Section 32(4)cannot arise on the grounds stated in the order dated 09.06.2004. Relying on the meaning ascribed to the expression 'operation of law' in Black's Law Dictionary and placing before the Court a judgment of the Apex Court in the case of State Bank of Bikaner and Jaipur, Appellants v. Ballabh Das and Co. and Ors., Respondents reported in (1999) 7 SCC 539 , Sri Mishra, learned Counsel for the Respondent/writ Petitioner has argued that the consequences intended by the statute on the happening of certain events can happen only on such events occurring. When the events occur the consequences intended by law come into automatic operation and no human effort is required for the legal consequences to follow. In the instant case, under Section 32(4), the Administrative Council could have been dissolved only if the Annual General Meeting had not taken place on or before 29.06.2004. Sri Mishra, therefore, has argued that irrespective of the events that have taken place in the present case, when under the statute the Administrative Council could be deemed to have been dissolved after 29.06.2004, the said consequences could not have been brought about by the impugned order dated 09.06.2004. Sri Mishra, therefore, has argued that irrespective of the events that have taken place in the present case, when under the statute the Administrative Council could be deemed to have been dissolved after 29.06.2004, the said consequences could not have been brought about by the impugned order dated 09.06.2004. Arguing further Sri Mishra has submitted that though by the interim order dated 10.06.2004, the Administrative Council continued to remain in office, yet having regard to the pending litigation between the parties the obligation to hold the Annual General Meeting on or before 29.06.2004 must be understood to have stood transposed in such a date that may be allowed by the Court. The Learned Single Judge having done precisely that, it is argued that no infirmity can be found with the consequential directions issued. Sri Mishra has further argued that under the provisions of the Rules and the byelaws, a meeting of the Administrative Council alone could have decided on a date for holding of the Annual General Meeting. The power to summon a meeting of the Administrative Committee has been vested by Rule 38 of the Rules in the Managing Director. The Managing Director having taken an adversarial stand in so far as the Administrative Council is concerned, no meeting of the Administrative Council could be held for which reason the holding of the Annual General Meeting cannot be visualized except under orders of the Court which orders have come in the judgment dated 29.09.2004 passed by the Learned Single Judge. 11. The rival submissions advanced on behalf of the parties have received our most anxious consideration. The extent and magnitude of the power under Article 226 of the Constitution, notwithstanding, the power must be exercised in consonance with law and consequences not intended by the statute cannot be brought about in exercise of the power under Article 226. Section 32(4), undoubtedly, manifest a clear legislative intent to bring about a dissolution of the Administrative Council/Managing Body on its failure to hold the Annual General Meeting within the extended time. It is only on the event occurring i.e. the failure to hold the Annual General Meeting within the stipulated date that will bring in the legal consequences that have been intended by the statute. Consequences, intended by the statute on the happening of certain events and contingencies can only occur on such event and contingencies taking place. It is only on the event occurring i.e. the failure to hold the Annual General Meeting within the stipulated date that will bring in the legal consequences that have been intended by the statute. Consequences, intended by the statute on the happening of certain events and contingencies can only occur on such event and contingencies taking place. The operation of the statute giving rise to certain consequences is in-built and automatic on the happening of the contingencies contemplated. No human effort would be required for the consequences to emanate. In the present case under Section 32(4) of the Act, the Annual General Meeting was required to be held on or before 29.06.2004 and only on the failure to hold the Annual General Meeting on or before the said date. Section 32(4) could have come into operation to bring about dissolution of the Administrative Council. The human mind may have perceived the impossibility of holding the Annual General Meeting on or before 29.06.2004 but such a perception could not have accelerated/advanced the date on which the statute is to operate to bring about the intended consequences. Section 32(4) as applied to the facts of the present case could have operated only after 29.06.2004. There was no power in anybody to accelerate the pace. It is not a case of a meaningless wait. Rather, it is a mandatory wait for the statute to take effect. Like all natural phenomena, the statutory phenomena too will follow only when it is due. We, therefore, take the view that the order dated 09.06.2004 could not have been passed to treat the Administrative Council to have been dissolved by operation of Section 32(4)of the Act and to the aforesaid extent we express our agreement with the view taken by the learned Single Judge. 12. Coming to the second question that requires our attention, we have noticed the relevant facts in this regard as well as the arguments advanced on behalf of the contesting parties. The statutory obligation to hold the Annual General Meeting within the extended time and the attendant consequences that are to follow on a failure to perform the said obligation, in our view, cannot stand postponed merely on the initiation of a litigation between the parties with regard to the validity of the action taken by means of the order dated 09.06.2004. When the Administrative Council which was treated to be dissolved by order dated 09.06.2004 came back to office on the strength of the interim order dated 10.06.2004, in the absence of any order by the Court to the said effect we fail to see any good reason, why the Administrative Council must be understood to have been absolved of its obligation under Section 32(4) to held the meeting within the extended time. No good reason to enable us to take such a view has been cited either. We would understand the interim order dated 10.06.2004 to have had the effect of keeping the order dated 09.06.2004 in abeyance and restoring the position as prevailing. If that be so, it is our considered view that the Administrative Council was duty bound to hold the Annual General Meeting on or before 29.06.2004 and the failure to do so, which is admitted, must result in bringing about what Section 32(4) had intended i.e. dissolution of the Administrative Council by operation of law. The difficulties pointed out in holding the meeting of the Administrative Council for the purpose of convening the Annual General Meeting, leaves us unimpressed as we find no prohibition under the Rules and the bye-laws in the Administrative Council to meet on its own in case of a recalcitrant Managing Director, defying all orders to arrange for a meeting of the Administrative Council, a situation that has been sought to be projected before us by the Respondent-writ Petitioner. The reliance placed by Sri Mishra on the judgment of the Apex Court in the case of Sri Ram Pyare Choudhury and Anr., Appellants v. State of Uttar Pradesh and Ors., Respondents, reported in (1982) 1 SCC 671 , particularly the reliance placed on the observations in paragraph 12 of the aforesaid judgment appear to be counter-productive. If the Administrative Council/Managing Body stood dissolved by operation of law with effect from a date immediately after 29.06.2004, we fail to see how such a body could be revived by the judicial order. Consequently, we are of the view that the directions issued by the Learned Single Judge permitting continuance of the Administrative Council and empowering it to hold the Annual General Meeting within a fresh period of 21 days would require our interference. The aforesaid part of the judgment dated 29.09.2004, therefore, stands set aside. 13. Consequently, we are of the view that the directions issued by the Learned Single Judge permitting continuance of the Administrative Council and empowering it to hold the Annual General Meeting within a fresh period of 21 days would require our interference. The aforesaid part of the judgment dated 29.09.2004, therefore, stands set aside. 13. By our interim order dated 13.10.2004 we had permitted the Commissioner and Secretary to the Government of Assam, Cooperation Department to run the affairs of the Bank by exercising the powers of the Administrative Council. As our interim order dated 13.10.2004 is still in force, we now direct the said authority i.e. the Commissioner and Secretary to the Government of Assam, Co-operation Department, to continue to exercise the powers of the Administrative Council and hold the Annual General Meeting of the Bank for the year 2003-2004 including the election to the Administrative Council by following all the requirements of the Act and the Rules as well as the bye-laws. The Annual General Meeting including the election of the Administrative Council shall be completed by the Commissioner and Secretary to the Government of Assam, Co-operation Department within the month of January 2005. 14. Both the writ appeals shall stand allowed to the extent indicated above. Appeal allowed