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2008 DIGILAW 168 (GAU)

Managing Committee of Parghat Kaibarta Min Silpa Samabaisamity Ltd. v. State of Assam

2008-02-27

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. Heard Mr. I. Choudhury, learned Counsel for the Petitioner as well as Ms. R. Chakraborty, learned State counsel representing the Respondents. 2. The Petitioners represent the Managing Committee of M/s. Parghat Kaibarta Min Silpa Samabai Samity Ltd. which is a registered Co-operative Society under the Cooperative Societies Act, 1949. There is no dispute that the Petitioners' Managing Committee is a elected body and its term, but for the impugned order, dated 20.12.2007 would have expired on 27.05.2010. 3. Alleging certain irregularities in managing the affairs of the Society, the Joint Registrar of the Co-operative Society by his Annexure-D letter dated 17.12.07 addressed to the Deputy Registrar of the Co-operative, directed him to instruct the Managing Committee of the Petitioners to take a corrective measure within 15 days. However, before the Deputy Registrar of the Co-operative Society could act upon the direction of the Joint Registrar of the Co-operative Society and before expiry of the stipulated period of 15 days, the Registrar of the Co-operative Societies, Assam passed the impugned order dated 20.12.07 (Annexure-E) placing the Managing Committee under suspension. By the same very order, the Respondent No. 6 has been appointed as the one man ad hoc committee to manage the affairs of the Society and he has also been entrusted with the task of holding AGM within 90 days from the date of issuance of the order. 4. It is the definite case of the Petitioners that before passing the impugned order dated 20.12.07 the Managing Committee was not put to any kind of notice. Further case of the Petitioners is that since the impugned order has got the effect of dissolution of the Managing Committee, the Registrar of the Co-operative could not have done so without first complying with the requirements of Section 36 of the Act. 5. The Respondents have filed their counter affidavit in which the reflections made in the impugned order dated 20.12.07 have been reiterated. According to the Respondents, since there was mismanagement of the affairs of the Society on the part of the Petitioners, there was no alternative than to invoke Section 32(5) of the Act towards passing the impugned order dated 20.12.07. 6. Section 32(5) of the Act pertains to dissolution of the Managing Body and consequent appointment of ad hoc body. According to the Respondents, since there was mismanagement of the affairs of the Society on the part of the Petitioners, there was no alternative than to invoke Section 32(5) of the Act towards passing the impugned order dated 20.12.07. 6. Section 32(5) of the Act pertains to dissolution of the Managing Body and consequent appointment of ad hoc body. Such dissolution of the Managing Body is upon failure of the Managing Body to hold the meeting with the stipulated period as indicated in Section 32(4). Section 32 of the Act pertains to holding of AGM by the Co-operative Societies. Thus, as submitted by Mr. I. Choudhury, learned Counsel for the Petitioner, invocation of the provision of Section 32(5) of the Act comes into operation only when there is failure on the part of the offending body to hold AGM. 7. In the instant case, it is not the case of the Respondents that the Petitioners failed to hold AGM. The Petitioners' Managing Body has been suspended on the basis of the allegation of irregularities committed by it. Admittedly the Petitioners were not provided with opportunity of being heard to meet the allegations. The specific statements in this regard made by the Petitioners in the writ petition have not been denied in the counter affidavit by the Respondents. 8. Although the impugned order dated 20.12.07 speaks only of suspension of the Managing Committee, but in effect it is dissolution of the Managing Committee of the Society. By the impugned order while suspending the Petitioners' Managing Committee, the Registrar of the Co-operative Societies, Assam has appointed one man ad hoc committee, i.e. the Respondent No. 6, not only to manage the affairs of the Society, but also to hold the AGM including election. If that be so, virtually the effect of the impugned order dated 20.12.07 is the dissolution of the Managing Committee represented by the Petitioners. 9. Section 36 of the Act provides for dissolution or reconstruction of the Managing Body. When the Registrar is satisfied after inspection of the enquiry Under Section 60 for reasons to be recorded to be in writing, he may after giving the offending body an opportunity to state its case, direct that a specific meeting of the General Assembly to be called within the time to be specified to dissolve the Administrative Council, managing body or committee concerned and to elect a new one. Thus, the principle of natural justice is inbuilt in Section 36. 10. In the instant case, in the name of suspending the Managing Committee of the Petitioners, the Registrar in fact, has dissolved it without affording any opportunity of being heard to the dissolved body. 11. Ms. R. Chakraborty, learned State counsel upon reference to the provision of Section 36 of the Act, submits that the Registrar of the Co-operative Societies, Assam in an emergent situation is entitled to suspend the offending body. As noted above, although the impugned order dated 20.12.07 speaks of suspending of the Petitioners' Managing Body, but in effect, the committee has been dissolved and that too, without affording any opportunity of being heard to the Petitioners. The effect of the impugned order is the dissolution of the Managing Committee and if that be so, could not have been so dissolved without following the laid down procedure. 12. Mr. I. Choudhury, learned Counsel for the Petitioners has placed reliance on the decision of the Apex Court in Ramchandra Keshav Adke v. Govind Jodi Chavare and Ors. reported in (1975) 1 SCC 559 to emphasize that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. In the instant case, the procedure envisaged under the Act has not been followed. 13. In view of the above, the writ petition is allowed setting aside and quashing the impugned order dated 20.12.07 (Annexure-E) with the liberty to the authority to deal with the matter in accordance with law, if so advised. It is expected that the Petitioners' Managing Committee will run the affairs of the Society strictly in accordance with law for betterment of the Society.