Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 799 (GAU)

Abdur Razzaque v. Monir Uddin

2013-11-13

B.D.AGARWAL, K.SHREEDHAR RAO

body2013
JUDGMENT K. Shreedhar Rao, J. 1. The above appeals are inter-related. Writ Appeal No. 319/13 is filed by the members of the society against the managing body seeking a declaration that the managing body has not convened the first Annual General Meeting as required under law. Therefore, the managing body stands automatically dissolved by declaration 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 order of the learned single Judge wherein it was held that the term of the appellant managing body would expire by 31.3.2012. 2. 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(C) No. 4676/2009 and WP (C) 4908/2009 were filed by some of the members of the society. The first petition is filed for holding fresh election and the second petition is filed for a direction to hold the counting and to declare the result of the successful candidates. The second writ petition was argued and the learned Single Judge of this Court on 10.2.2012 directed to proceed with the counting and for declaration of the result Since there was order for counting was made 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 appellant managing committee is declared elected. The elected managing committee convened a general meeting on 7.3.2012 and the second general body meeting was held on 29.7.2012. On the date of the second meeting there was unruly situation and objections were raised that meeting was not convened 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 Cooperative society for extending time to hold the AGM. Registrar of Cooperative Society directed to hold the meeting within 29.9.2012. Accordingly, AGM was held on 28.9.2012. 3. The Assam Co-operative Society Act, 2007 received presidential assent on 8.1.2012 and it came into effect from 10.3.2012 vide Gazette publication on 5.3.2012. The managing body approached the Registrar of Cooperative society for extending time to hold the AGM. Registrar of Cooperative Society directed to hold the meeting within 29.9.2012. Accordingly, AGM was held on 28.9.2012. 3. The Assam Co-operative Society Act, 2007 received presidential assent on 8.1.2012 and it came into effect from 10.3.2012 vide Gazette publication on 5.3.2012. The Assam Co-operative Societies Act, 1949 came to be repealed by the Act 2007. The 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-operative year within a period of 120 days from the date of expiry of every cooperative year. The Board shall automatically stand dissolved for not holding Annual General Meeting in accordance with the provisions of the Act and bye-laws within 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-operative year within a period of six months of close of the financial year to transact the business as provided in this Act. The Board shall automatically stand dissolved for not holding. Annual General Meeting in accordance with the provisions of the Act and bye-laws within six months from the expiry of every Financial year. 4. The learned single Judge of this Court in WP(C) No. 4908 of 2009 filed by the appellant in WA No. 319/2013 while interpreting the provisions of Section 39 held 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, the life of the body is to be reckoned from the date of election and the tenure of the incumbent managing body should continue for the remaining period. The order did not clarify as to what was the remaining period for the elected body. However, in WP (C) No. 2307 of 2013 filed by elected body it was clarified that the term of the incumbent managing body would expire on 31.3.2012 by an interim order. The order did not clarify as to what was the remaining period for the elected body. However, in WP (C) No. 2307 of 2013 filed by elected body it was clarified that the term of the incumbent managing body would expire on 31.3.2012 by an interim order. However, in the final order it was held that the incumbent elected body will have three years terms from the date of its first meeting which means to say that the tenure of the body would expire by 06.03.2015. The appellant in WA No. 319 aggrieved by the final order has filed this appeal and against the interim order passed in the same writ petition WA No. 330 of 13 was filed. 5. Sri K.P. Sarma, learned senior counsel for the appellant in WA No. 319/13 submitted 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 period of life span is to be reckoned from the date of election. If it is so the tenure of the body would expire 31.3.2012. Secondly, it was argued that the AGM is not convened as required under Section 39. The unamended provision prescribes AGM 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 was convened on 29.7.2012 is non est because it was not convened in accordance with law. The Registrar of Co-operative Society is not empowered under the Act to extend the time for holding AGM contrary to the provisions of Section 39 and that the meeting held beyond the prescribed period under Section 39 would be a nullity therefore for want of non-compliance of the said provision, the elected body automatically 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 held. The learned counsel for the co-operative Society submits that if the Court were to hold that the provision of Act 2007 the amended provisions of Section39 which came into effect from 5.2.2013 if made applicable the tenure of the managing committee should have to be reckoned from the date of its first meeting and its tenure will have 5 years. The learned counsel for the co-operative Society submits that if the Court were to hold that the provision of Act 2007 the amended provisions of Section39 which came into effect from 5.2.2013 if made applicable the tenure of the managing committee should have to be reckoned from the date of its first meeting and 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. 6. Sri M.K. Choudhury, learned counsel arguing for the appellant in WA No. 313/13 strenuously contended that the provision of the Act makes it explicit that the tenure of the body is to be reckoned from the date of its first meeting. If is it so in the instant case, first meeting is held on 7.3.2012 and during continuation of the existing managing body the amendment is effected under Section 39 wherein the tenure of the body under Section 31 is enhanced from 3 years to 5 years and the amendment is effected by way of substitution. Therefore the effect of the amendment 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 managing committee did convene AGM on 29.7.2012 but the meeting could not be successfully held because there was no departmental observer and there was unruly situation. Therefore, a resolution was passed that the meeting is cancelled. It is submitted that when the meeting is convened and not successfully concluded it cannot be said there is a breach on the part of the managing committee in convening the meeting. Alternatively it is argued that the AGM is held with the permission of Registrar of Cooperative Society on 28.9.2012 and the said meeting is also in accordance with Section 39. Therefore, the contention that the committee stands dissolved is untenable. 7. The unamended provision of Section 39 earlier provided that AGM to be held within the period of 120 days from the date of expiry of the co-operative year 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. 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 the 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 control. 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 Society. 8. The provision of Section 39 does not deal with the insistence of calling informal first general body meeting. The provision of Section 39 insist only AGM once in a year. When the tenure was 3 years then 3 AGM to be held if the tenure is 5 years than 5 AGM to be held in, each year. In the present case immediately after the election the managing committee convened general body on 7.3.2012. The said meeting my satisfy the requirement of Section 39. The AGM at the instance of Registrar of Cooperative was convened on 29.7.2012. The said meeting could not be successfully completed because of the unruly situation and for non attendance of observers from the department. Therefore, a resolution was passed that the meeting is cancelled. Again the Registrar directed that AGM to be held or on before 29.9.2012. Accordingly, AGM is held on 28.9.2012. The unamended provision of Section 39 directed that outer limit of holding AGM is within the period of 120 days before expiry of co-operative year. Co-operative year commenced from 1st April to 31st March of the said year. In this case all the three AGM held are within the prescribed outer limit as envisaged under Section 39 because if the outer limit is considered 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 violation or default on the part of the managing committee and in that view the question of automatic dissolution as per law does not arise. 9. In this case all three meetings held prior to November, 2012. Therefore, there does not appear to be any violation or default on the part of the managing committee and in that view the question of automatic dissolution as per law does not arise. 9. 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 interpreting 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 first meeting. It is to be noted that the amendment to Section 39 is effected by way 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 meeting. In view of the discussions and reasons cited above WA No. 319 is dismissed and WA No. 330 of 2013 stands allowed.