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2007 DIGILAW 265 (GAU)

Samsul Haque v. State of Assam

2007-04-05

AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. The writ jurisdiction of this Court has been sought to be invoked to interfere with the order dated 13.09.2006, passed by the District Deputy Registrar of Co-operative Societies, Barpeta, determining Balikuri Bazar to be the headquarter of Paschim Jania Samabay Samity (hereafter referred to as the 'Samity'), so as to operate its Office-cum-Godown therefrom, instead of Kadong Mahammadpur. 2. I have heard Mr. M.U. Mahmud, learned Counsel for the Petitioners and Mr. H.R.A. Choudhury, Senior Advocate for the respondent Nos. 7 to 30. Also heard Mr. B.C. Saikia, learned State counsel for the State respondents. 3. The Petitioners' account of facts discloses that the Petitioner No. 1 is the elected Vice President of the Society and the competitioners are members thereof. The Society is a registered body under the Assam Co-operative Societies Act, 1949, (hereafter referred to as Act) and the Rules framed thereunder. Within its area of operation, there are 21 villages with 36 recorded agents. The river Beki divide the area into two parts. Whereas in the Eastern parts, there are 15 villages with 24 agents; in the Western part there are 6 villages with 12 agents. The office of the society is situated at village Kadong since its establishment. However, as river Beki posted continuous threats to the premises of the Society, its elected body on 28.09.1986 adopted a resolution in its general meeting to shift the Office to a nearby village, Mahammadpur. The meeting also resolved to construct a building on a plot of land at Mahammadpur village, in the meantime, purchased by the Society. Thereafter, a permanent construction for the Office and Godown of the Society was raised on the land measuring 1 Bigha covered by Dag Nos. 305, 308, 307 and included in Patta No. 138 purchased from one Barun Chandra Mitra of village Mohammadpur vide Sale Deed No. 2839/86. The Society since then started functioning therefrom with its Office and godown at Mahammadpur. It thereafter, purchased another plot of land measuring 3K 4L on 10.02.2000 by a registered Sale Deed at the same place. While the it was thus operation at Mahammadpur, some persons impressed upon the then Assistant Registrar of Co-operative Societies, Barpeta for shifting Office-cum-Godown of the Society to Balikuri Bazar on vested interest. Accordingly, the said authority on 24.10.1994, directed the shifting of the Office-cum-Godown of the Society to Balikuri Bazar from village Mahammadpur. While the it was thus operation at Mahammadpur, some persons impressed upon the then Assistant Registrar of Co-operative Societies, Barpeta for shifting Office-cum-Godown of the Society to Balikuri Bazar on vested interest. Accordingly, the said authority on 24.10.1994, directed the shifting of the Office-cum-Godown of the Society to Balikuri Bazar from village Mahammadpur. Being aggrieved, two members of the Society approached this Court with C.R. No. 4692 of 1994, challenging the said order. By order dated 25.11.1994, the decision was stayed. The petition was listed for admission on 31.03.1997. However, as none on behalf of the Petitioner was present, it was dismissed for non-prosecution and the interim order was vacated. According to the Petitioner, however, even thereafter, the Office-cum-Godown of the Society continued to function from village Mohammadpur till today. By the impugned order dated 13.9.2006, again it has been directed to operate from Balikuri Bazar. The Petitioners have asserted that not only the impugned order is in violation of the provisions of the Act and the Rules, it is neither in the interest of members of the Society as a whole, nor is desired by them. The official respondents have not filed any counter. The respondent Nos. 7 to 30 in their affidavit, have averred that the registered address of the Society is at Village No. 1 Rasulpur near Balikuri Bazar, wherefrom it has been functioning from its inception. According to them, within the area of operation of the Society, there are 21 villages with 47 agents under 4 Gaon Panchayats, namely, i) Janata G P., ii) Sonapur Rubi G P., iii) Gobindapur G P. and iv) Kadang G P. The River Beki devides the area into three Parts as follows: Part Village Agent Eastern 5 12 Western 11 23 Southern 8 12 4. The answering respondents have stated that the Eastern Part falls within the Kadong G.P. and the Western and Southern Parts are included within the three other Gaon Panchayats. They have maintained that as the major portion of the area of the Society i.e. the Western and Southern Parts, is located near the Balikuri Bazar, the Office-cum-Godown of the Society functioned therefrom (Balikuri Bazar). Moreover, due to sudden disruption of communication after a year, the Office-cum-Godown was temporarily shifted to Kadong Mahammadpur. They have maintained that as the major portion of the area of the Society i.e. the Western and Southern Parts, is located near the Balikuri Bazar, the Office-cum-Godown of the Society functioned therefrom (Balikuri Bazar). Moreover, due to sudden disruption of communication after a year, the Office-cum-Godown was temporarily shifted to Kadong Mahammadpur. As the road communication improved, the Office-cum-Godown was again shifted to Balikuri Bazar by order dated 24.10.1994, as per resolution No. 3 dated 02.02.1994 of the Managing Committee of the Society. After C.R. No. 4692 of 1994, was dismissed on 31.03.1997, the Assistant Registrar of Cooperative Societies by his letter dated 12.05.1997, directed the Chairman/Secretary of the Society to act in terms thereof. The Office-cum-Godown of the Society, however, continued to run at Kadong Mohammadpur tile it was tagged with Pub-Jania S.S. Ltd. in September, 2001, an arrangement, which continued till April, 2005. Since May, 2005, the Office-cum-Godown of the Society started operating from Balikuri Bazar and on the basis of an understanding for the convenience of the consumers the Godown at Balikuri was utilized for distributing PDS articles of the three Gaon Panchayats in the Western and Southern Parts comprising of 90 percent share holders and for the remaining 10 percent share holders of the Eastern Part PDS items were distributed from Mahammadpur. 5. While expressing ignorance about the factum of purchase of land as claimed by the Petitioners, the answering respondents have pleaded that as the facts involved, are disputed, this Court is not an appropriate forum to decide the issue of location of the Office-cum-Godown of the Society. They have contended that the PDS articles are collected from Sarbhog, which is about 28 k.m. from Balikuri Bazar and Kadong being located at 40 k.m. therefrom, transportation thereof to Balikuri Bazar would be less expensive. The answering respondents asserted that more than 26000 of the local population hails from Western and Southern Parts of Beki river compared to 12000 from the Eastern and some portion of the Southern Part and, therefore, it would work hardship for the consumers of the Western and Southern Parts, if the Office-cum-Godown of the Society is made to function from Mahammadpur. The Petitioner in his reply affidavit has asserted that out of four Gaon Panchayat within the territorial jurisdiction of the Society two of them namely, Gobindapur and Kadong are situated in the Eastern Part of river Beki, where there are 11 villages and 24 agents. Sonapur Rubi Gaon Panchayat falls in the Western Part consisting of 6 villages and 6 agents, Janata Gaon Panchayat being located in the Southern Part with 1 village and 6 agents. Out of 36 recorded agents therefore, only 9 agents are from Balikuri Bazar, i.e. 6 of Janata Gaon Panchayat and 3 of Rubi Gaon Panchayat and the rest 27 agents operate from Mahammadpur, Kadong. While, reiterating that the Office-cum-Godown of the Society had been functioning at Mohammadpur since 1986, except for brief intervals due to floods in the river Beki, according to the Petitioner, the PDS articles are collected from FCI at Barpeta Road and not from Sarbhog. However, looking at the interest of the consumers in the Balikuri Bazar area, the Managing Committee of the Society in its meeting held on 16.02.2007 had resolved to set up a Sub-godown at Janata Bazar, Balikuri for distribution of PDS articles to them. 6. Mr. Mahmud, has assiduously urged that the Office-cum-Godown of the Society being functional at Mohammadpur from the very beginning, the decision to shift it to Balikuri Bazar by the order dated 24.10,1994, was rightly challenged before this Court. Following the interim order, the said decision was not implemented and even after the dismissal of the petition, the Office-cum-Godown of the Society continued to function at Mahammadpur. The writ petition having not been decided on merits, the administrative decision to shift the Office-cum-Godown of the Society to Balikuri Bazar, cannot thus be said to have been approved by this Court. In any view of the matter, the order impugned in the instant proceeding having been passed almost after a decade it is apparently prompted by extraneous considerations and is liable to be interfered with, he urged. The learned Counsel maintained that the total Membership of the Society being 3351, the decision to shift the Office-cum-Godown of the Society thereof, at the instance of 316 members, cannot in any view of the matter, serve the interest of the Society or its members as a whole. The learned Counsel maintained that the total Membership of the Society being 3351, the decision to shift the Office-cum-Godown of the Society thereof, at the instance of 316 members, cannot in any view of the matter, serve the interest of the Society or its members as a whole. The private respondents being only the agents of the Society and not its shareholders, their opinion on the issue cannot be decisive in absence of the consensus of the whole body of the members or a majority thereof, in support of the shifting of the Office-cum-Godown of the Society to Balikuri Bazar. In other words, the learned Counsel has sought to contend that the private respondents lacked locus standi to resist the challenge projected by the Petitioners. Reiterating that the Society has its land and building at Mahammadpur, a fact not denied by the respondents and that the said place was preferable to Balikuri Bazar in all respects the learned Counsel contended that the impugned order, if sustained, would only accommodate the interest of the concerned public officials and the agents of the Society at the cost of its shareholders. 7. Mr. Choudhury, in reply submitted that as the pleadings of the parties have thrown up disputed questions of facts, the instant petition is liable to be dismissed, as this Court in the exercise of its writ jurisdiction would not embark on an inquiry into the same. The learned Senior counsel maintained that the Office-cum-Godown of the Society had been functioning from the very beginning at Balikuri Bazar, as it served the interest of the members thereof, conveniently, having regard to the topography of the area. For a brief spell due to deteriorating road communication, the Office-cum-Godown of the Society shifted to Mahammadpur, but was restored at Balikuri Bazar shortly thereafter. The challenge to the order dated 24.10.1994, having been dismissed by this Court and there being no appeal therefrom to any higher forum, it is not open for the Petitioners to challenge the order dated 13.09.1996, being consequential thereto, he urged. Mr. Choudhury, reiterated that the Office-cum-Godown of the Society at Balikuri Bazar is to the convenience of the members/consumers of the Society and, therefore, no interference with the impugned decision is called for. 8. Mr. Saikia learned State counsel, while endorsing the arguments of Mr. Choudhury, has placed for the perusal of this Court the relevant records. 9. Mr. Choudhury, reiterated that the Office-cum-Godown of the Society at Balikuri Bazar is to the convenience of the members/consumers of the Society and, therefore, no interference with the impugned decision is called for. 8. Mr. Saikia learned State counsel, while endorsing the arguments of Mr. Choudhury, has placed for the perusal of this Court the relevant records. 9. The rival factual assertions and the competing arguments have been duly evaluated. Evidently, the recorded facts present conflicting versions. Whereas, the Petitioners' claim that the Office-cum-Godown of the Society had been operational from the beginning at Mohammadpur in the building constructed by it on its land and that the arrangement caters to the needs and demands of the majority of its shareholders, the private respondents contend otherwise. The merits and demerits of the two locations have also been highlighted by the contesting parties in support of their stands. 10. The Society, admittedly, being registered under the Act, has to disclose in its application under Rule 5 of the Assam Co-operative Society Rules, 1953 (for short the 'Rules'), it's registered address, inter alia, along with the area of operation thereof. The letter dated 27.01.2006, of the Assistant Registrar of Co-operative Societies, Barpeta, addressed to the Registrar of Co-operative Societies of Assam, Guwahati, amongst others, disclose that the registered address of the Society is at village No. 1, Rasulpur near Balikuri Bazar and that it had been functioning therefrom from the inception thereof. The letter further divulge that the Office-cum-Godown of the Society was shifted to Balikuri Bazar, whereafter, it became operational there. After the dismissal of the earlier writ petition on 31.3.1997, the Chairman/Secretary of the Society was directed to act in terms of the order of the said date of this Court. It further appears from the said letter that the area of the operation of the Society is divided by river Beki and whereas, 90% of the shareholders reside in the Western side (Balikuri Bazar) only 10% inhabit the Eastern side (Kadong Mohammadpur). Accordingly, 90% of the PDS items are lifted at Balikuri Bazar and 10% at Kadong Mohammadpur. On a consideration of the above, the Assistant Registrar of Co-operative Societies, Barpeta, therefore, recommended the shifting of the Office-cum-Godown to Balikuri Bazar. The impugned order belated though, appears to have been passed approving the said suggestion. It is thus evident that the registered Office of the Society is at Balikuri Bazar. On a consideration of the above, the Assistant Registrar of Co-operative Societies, Barpeta, therefore, recommended the shifting of the Office-cum-Godown to Balikuri Bazar. The impugned order belated though, appears to have been passed approving the said suggestion. It is thus evident that the registered Office of the Society is at Balikuri Bazar. Though, the Petitioners have consistently maintained that the Society has its land and building at Mohammadpur, except a copy of the resolution dated 28.09.2006 of the Managing Committee of the Society, for construction of a godown at Mohammadpur village on the land referred to therein, having been purchased by it and to shift the Office-cum-Godown there, no other record has been placed at the disposal of the Court in that regard. Noticeably, neither the affidavit of the respondents nor the correspondences/documents on record have any further reference of such land and building of the Society at Mohammadpur. Admittedly, the impingement of the order dated 24.10.1994, of the Assistant Registrar of the Co-operative Societies, Barpeta, to locate the Office-cum-Godown of the Society at Balikuri Bazar had been abandoned following the dismissal of the earlier writ petition and the said decision therefore, remained intact. A bare perusal of the order dated 24.10.1994, discloses that the same was passed after an inquiry and was in approval of the resolution No. 3 dated 02.02.1994 of the Managing Committee of the Society. The order is therefore, suggestive of the fact that not only the Managing Committee of the Society at that point of time desired to have the Office-cum-Godown thereof, at Balikuri Bazar, the proposal found favour with the concerned State authority after due inquiry. The impugned order dated 13.09.2006, as a whole, demonstrates that one of the considerations therefor, was the order dated 31.03.1997, of this Court dismissing the C.R. No. 4692 of 1994. The order further proclaims that it was in pursuance of the request made by the Chairman of the Society and 314 members thereof, and after conducting a physical spot verification ascertaining the assessibility of road and distances from the nearest FCI godown to Balikuri Bazar and Kadong. It was on an appreciation of such facts that the authority concerned held the view that the situation of the Office-cum-Godown of the Society would be more convenient at Balikuri Bazar than Kadong Mohammadpur. 11. It was on an appreciation of such facts that the authority concerned held the view that the situation of the Office-cum-Godown of the Society would be more convenient at Balikuri Bazar than Kadong Mohammadpur. 11. The official records contain a representation submitted by 491 members of the public addressed to the Chairman of the Society on 02.09.2006, highlighting that distribution of the PDS items from the registered office at Balikuri Bazar would be of great relief to them. It was further stressed that lifting of the said items from the godown at Kadong involved extra expenditure and that the road communication to Balikuri Bazar was much better compared to Kadong. The Present of the Society on 07.09.2006, had forwarded the said representation to the Deputy Registrar of the Co-operative Societies, Barpeta for his opinion and necessary action. The resolution dated 16.02.2007 annexed to the reply-affidavit the Petitioners disclose a decision of the Managing Committee of the Society to start a Sub-godown at Balikuri Bazar. This is in view of the order dated 30.10.2006 J of this Court in the instant proceeding directing maintenance of status quo with regard to the Office-cum-Godown of the Society at village Mohammadpur. 12. On a cumulative consideration of the materials on record, I do not feel persuaded to interfere with the impugned order in the exercise of the writ jurisdiction of this Court. The decision assailed apart from being based on a thorough assessment of the situational exigencies, the pleadings raise disputed questions of fact, into which this Court is not inclined to delve. The impugned order having regard to the background of facts and the earlier round of litigation, does not, per se, appear to be arbitrary or vitiated by extraneous considerations to achieve any collateral purpose. Both the orders dated 24.10.1994 and 13.09.2006 proclaim that inquiries/spot verifications had been made by the concerned authority to determine the most acceptable place for the Office-cum-Godown of the Society to function. On the previous occasion, a resolution of the Managing Committee of the Society recommending Balikuri Bazar for its Office-cum-Godown appears to have taken. The order impugned followed a request by quite a number of members of the area on an analysis of the ground realities opting Balikuri Bazar to Mohammadpur as more preferable. In the exercise of this Court power of judicial review, I do not consider it to be a fit case for interference. The order impugned followed a request by quite a number of members of the area on an analysis of the ground realities opting Balikuri Bazar to Mohammadpur as more preferable. In the exercise of this Court power of judicial review, I do not consider it to be a fit case for interference. The petition, therefore, stands dismissed. The interim order stands vacated. 13. This determination notwithstanding, considering the rival versions of the parties and the fact that the representation for shifting the Office-cum-Godown of the Society to Balikuri Bazar has been by a section of the shareholders, the total number whereof, is 3351, the Registrar of Co-operative Societies, Assam, in order to put to a quietus to the lingering controversy is hereby ordered to cause an immediate inquiry to be made into all relevant factual aspects and determine the place, wherefrom the Office-cum-Godown of the Society can be most effectively an conveniently operational for the benefit of its shareholders/consumers in general and pass appropriate order (s) as deemed fit and proper. This should be done within a period of one (1) month from the date of receipt of the certified copy of this order. No costs. Petition dismissed