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2015 DIGILAW 399 (GAU)

Abdul Waheb v. State of Assam & Ors.

2015-03-31

MANOJIT BHUYAN

body2015
Manojit Bhuyan, J. – Service of notice upon respondents being complete, this writ petition is taken up for final disposal. 2. Heard Mr. M.U. Mandal, learned counsel representing the petitioner as well as Dr. B. Ahmed, learned Standing Counsel, representing respondent nos. 1 to 4 and Mr. A.K. Sarma, learned counsel, representing respondent nos. 6,7 and 9. None appears to represent respondent nos. 5, 8, 10 and 11. 3. The erstwhile Managing Committee of Ambary Sadhubhasa S.S.Ltd was dissolved under Section 32(4) of the Assam Co-operative Societies Act, 2007 by order of 17.2.2011 under the hand of the Registrar of Co-operative Societies, Assam. By the same order, an Adhoc Committee was constituted in exercise of power under Section 32(5) of the Act with the stipulation that the said Ad-hoc Committee will hold the Annual General Meeting of the Societies within 90 days from 17.2.2011, failing which it was stipulated that the order of 17.2.2011 would automatically stand withdrawn. The constitution of the said Ah-hoc Committee was duly indicated in the said order dated 17.2.2011. In the present petition the said Ad-hoc Committee is arrayed as respondent no.6. 4. As no Annual General Meeting/Election was held, the issue gave rise to the institution of W.P.(C) No.3094/2011 by two share holders of the society. While disposing of the said writ petition by order dated 20.6.2011, this Court had directed the respondent authorities to hold election after expiry of 45 days from the date of preparation of the voters list. It is the case of the petitioner that the respondent authorities far from holding the election have also not prepared the voters list. The petitioner further contends that despite clear direction of this Court in W.P.(C) No.3094/2011, the Registrar of Co-operative Society have also not initiated any action towards compliance of the direction of this Court. 5. According to the petitioner, perhaps the Registrar of Co-operative Society, Assam did not take any follow up action in view of the restraint order passed in Misc.(J)Case No.14 of 2011, arising out of Title Suit No.12 of 2011 instituted by one Abdul Mazid and two others. The said Abdul Mazid is the respondent no.7 in the present petition and is also a member of the Ah-hoc Managing Committee. The said Abdul Mazid is the respondent no.7 in the present petition and is also a member of the Ah-hoc Managing Committee. From records it appears that initially by order dated 5.5.2011 passed in the aforesaid Misc.(J)Case No.14 of 2011, an order was passed for maintaining status-quo in respect of replacing the present existing Managing Committee of Ambari Sadhubhasa S.S.Ltd. However, the said status-quo order was vacated on 12.9.2014. Although another suit was instituted at the instance of the Ad-hoc Managing Committee, by the respondent nos. 10 and 11 in the present proceeding, no injunction order was passed in the said suit. 6. In the backdrop of the facts as indicated above, Mr. Mandal, learned counsel for the petitioner submits that all along the Ad-hoc Managing Committee has failed to discharge its statutory obligations. Besides, the order passed by this Court in W.P.(C) No.3094/2011 have also not received due compliance. Mr. Mandal also submits that on account of the failure of the Ad-hoc Managing Committee to hold the Annual General Meeting it has suffered dissolution in view of the provisions under Section 39 of the Act. Further, the said Ad-hoc Managing Committee also having failed to conduct election of the Directors in accordance with the Act and bye laws, the members/Directors of the Ad-hoc Managing Committee have ceased to become Directors in view of the provisions under Section 41(3) of the Act. 7. Under the circumstances, Mr. Mandal submits that this is a fit case where a direction should be issued to the respondent-authority i.e. the Registrar of Co-operative Societies, Assam to appoint an officer of the Co-operation Department so as to convene a general meeting and for constitution of regular Board within 90 days from the date of such appointment as well as to perform functions of the Board during the said period of 90 days. 8. The prayer made by Mr. M.U. Mandal have not received stiff opposition from Dr. B. Ahmed, learned counsel representing the State-Respondents. However, Mr. A.K. Sarma, learned counsel representing respondent nos. 6,7, and 9, by referring to paragraph 4 of the affidavit-in-opposition filed today, submits that the subject matter in the present proceeding having been duly answered by this Court in W.P.(C) No.3094/2011, as such the petitioner is estopped from claiming any further relief. 9. B. Ahmed, learned counsel representing the State-Respondents. However, Mr. A.K. Sarma, learned counsel representing respondent nos. 6,7, and 9, by referring to paragraph 4 of the affidavit-in-opposition filed today, submits that the subject matter in the present proceeding having been duly answered by this Court in W.P.(C) No.3094/2011, as such the petitioner is estopped from claiming any further relief. 9. I have heard counsels for the parties and have also appreciated the documents on record as well as the relevant provisions under the Assam Co-operative Societies Act, 2007. 10. First and foremost, there is no indication either from the respondent nos. 6, 7 and 9 or the State Respondents to the effect that the conditions laid down by order dated 17.2.2011, had been complied with. The contents of the said order dated 17.2.2011, whereby the Ad-hoc Managing Committee had been constituted, itself makes it clear that the said order would stand automatically withdrawn in case the said Ah-hoc Managing Committee fails to hold the Annual General Meeting within 90 days. There is also no indication from the respondents that steps had been initiated for preparation of the voters list and/or steps for holding election pursuant to direction of this Court passed in W.P.(C) No.3094/2011. At this stage, Mr. A.K.Sarma, learned counsel representing respondent nos. 6, 7 and 9 refers to paragraph 6 of the affidavit-in-opposition to show that preparation to the extent of 60% of the voters list of the share holders of the Society have been completed. Be that as it may, the fact remains that the voters list have not been completed until this day. 11. There is no escape from the fact that the Ah-hoc Managing Committee having failed to hold the Annual General Meeting and/or election within the period prescribed under the statute, the Ad-hoc Managing Committee and the Directors thereof have suffered dissolution/cessation by operation of the provisions under Section 39 and 41 of the Assam Co-operative Societies Act, 2007. 12. In view of the above, this writ petition stands allowed with direction to the Registrar, Co-operative Societies, Assam to exercise power under Sub-section (5) of Section 41 of the Assam Co-operative Societies Act, 2007, thereby appointing an Officer of the Co-operation Department in order that a general meeting can be convened within the period prescribed under Sub-section (5) of Section 41. The said exercise by the Registrar of Co-operative Societies be taken within a period of two weeks from the date of production of a certified copy of this order. No costs.