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2022 DIGILAW 571 (GAU)

Babul Das v. State of Assam

2022-05-31

MANISH CHOUDHURY

body2022
JUDGMENT : 1. The petitioners, 7 in Nos., have joined together to institute this writ petition under article 226 of the Constitution of India by making assailment of an order dated 16.10.2021 passed by the Registrar of Co-operative Societies, Assam whereby the Registrar of Co-operative Societies, Assam has set aside a resolution taken on a motion of no confidence in a special meeting of the Board of directors of M/s. Chariduar Brahmaputra and Khaloibeel Fishery Co-operative Society Ltd., held on 19.8.2021, by declaring the resolution as null and void. The motion of no confidence was brought against the respondent No. 6 who was the President of the Board of directors of M/s. Chariduar Brahmaputra and Khaloibeel Fishery Co-operative Society Ltd. and as per the resolution, the motion of no confidence was held to have passed against the respondent No. 6. 2. M/s. Chariduar Brahmaputra and Khaloibeel Fishery Co-operative Society Ltd., District-Sonitpur (‘the Society’, for easy reference) is a co-operative society registered under the provisions of the Assam Cooperative Societies Act, 2007, as amended. In the Annual General Meeting (AGM')/Election held in the year 2018, as per the provisions of the Assam Co-operative Societies Act, 2007 (‘the Act, 2007’ and/or ‘the 2007 Act’), the members of the Society elected the directors, 13 in Nos., for the Board of directors of the Society. As the Society has no women shareholder members, the Election was held for 13 Nos. of directors keeping 2 posts, reserved for women shareholder members, vacant. It is not in dispute that since the year 2018, the Society has 13 Nos. of directors in its Board of directors. The Board of directors had elected the respondent No. 6 as the President of the Society, by following the procedure provided in section 36(1) of the Act, 2007. 3. A brief narration of the preceding events leading to the passing of the order dated 16.10.2021 by the Registrar of the Co-operative Societies, Assam (‘the Registrar’) appears necessary in order to appreciate the issues raised and involved in the writ petition: 3.1 On 1.7.2021, 12 Nos. 3. A brief narration of the preceding events leading to the passing of the order dated 16.10.2021 by the Registrar of the Co-operative Societies, Assam (‘the Registrar’) appears necessary in order to appreciate the issues raised and involved in the writ petition: 3.1 On 1.7.2021, 12 Nos. of directors of the Board of the Society submitted a requisition notice to the respondent No. 6 expressing want of confidence in him as the President of the Board of directors of the Society and had requested him to convene a special meeting of the Board of directors of the Society at 09.00 a.m. on 7.7.2021 to discuss the motion of no confidence. On receipt of the said requisition notice dated 1.7.2021, the Secretary of the Society by a letter dated 3.7.2021 informed the respondent No. 6 that the directors of the Society expressed their displeasure in him for not responding to their requisition notice dated 1.7.2021 and for seeking their presence in a meeting called by the respondent No. 6 at his residence on 4.7.2021 instead of the office of the Society. It was informed to the respondent No. 6 by the Secretary of the Society through his letter dated 3.7.2021 that the directors had decided not to attend the meeting on 4.7.2021 called by the respondent No. 6 at his residence, subsequent to the requisition notice dated 1.7.2021. The requisition notice dated 1.7.2021, submitted by 12 Nos. of directors of the Society, did not culminate in a special meeting to discuss the motion of no confidence sought to be brought by them against the respondent No. 6. On 6.7.2021, it was informed to the respondent No. 6 that the meeting to discuss the motion of no confidence would not be held on 7.7.2021 due to Covid-19 pandemic situation and the next date for the meeting would be decided later on. Though the meeting was thereafter, scheduled on 2.8.2021 the same also could not be held purportedly due to some unavoidable circumstances. Be that as it may. 3.2 The genesis of the present lis is a requisition notice submitted, by 8 Nos. of directors of the Society on 5.8.2021 to the respondent No. 6 expressing want of confidence in him and they requested the respondent No. 6 to convene a special meeting immediately to hold discussion on the motion of no confidence brought against him. 3.2 The genesis of the present lis is a requisition notice submitted, by 8 Nos. of directors of the Society on 5.8.2021 to the respondent No. 6 expressing want of confidence in him and they requested the respondent No. 6 to convene a special meeting immediately to hold discussion on the motion of no confidence brought against him. On receipt of the said requisition notice from 8 Nos. of directors of the Society, the respondent No. 6 with his endorsement dated 9.8.2021 on the body of the said requisition notice accorded his consent to convene a special meeting of the Board of directors of the Society on 19.8.2021 to hold discussion on the motion of no confidence. On the basis of the endorsement dated 9.8.2021 made by the respondent No. 6 on the body of the requisition notice dated 5.8.2021, the Secretary of the Society issued notices dated 12.8.2021 to all the Directors of the Society informing them that the special meeting would be held at the head office of the Society at Tezpur at 10.00 a.m., 19.8.2021 and the agenda of the special meeting had been mentioned as a discussion on the motion of no confidence brought against the respondent No. 6. 3.3 The process for holding the special meeting on 19.8.2021 was accordingly started at the venue as per the time schedule mentioned in the notice dated 12.8.2021. Prior to the start of the proceedings of the special meeting so convened, the respondent No. 6, 9 other Directors of the Society, the Secretary of the Society and a Government Officer reached the venue of the special meeting. But the respondent No. 6 and one of the Directors of the Society refused to subscribe their signatures in the attendance sheet prepared for the special meeting and left the venue of the special meeting before initiation of any discussion on the motion of no confidence brought against the respondent No. 6. Thereafter, the proceedings of the special meeting started and continued in presence of 8 Nos. of directors of the Society and other officials wherein the motion of no confidence brought against the respondent No. 6 was discussed. After discussion, a resolution was stated to have been passed with requisite majority expressing lack of confidence in the respondent No. 6 for his continuance as the President of the Board of directors of the Society. of directors of the Society and other officials wherein the motion of no confidence brought against the respondent No. 6 was discussed. After discussion, a resolution was stated to have been passed with requisite majority expressing lack of confidence in the respondent No. 6 for his continuance as the President of the Board of directors of the Society. 3.4 On the date of the special meeting itself, i.e., on 19.8.2021, the respondent No. 6 filed, an application before the Zonal Joint Registrar of Co-operative Societies, Tezpur Zone (the respondent No. 4) stating, inter alia, that 3 No. of directors of the Society, named therein, were restrained by the police when they were on their way to attend the special meeting and as a result of such act of restraint by the police, those 3 Directors of the Society were not able to attend the special meeting on 19.8.2021. Projecting so, the respondent No. 6 requested the respondent No. 4 not to act upon the resolution stated to have been passed against him in the special meeting held on 19.8.2021 and also requested, to fix another date to hold the special meeting afresh. It transpires that the 3 No. of directors of the Society, as mentioned by the respondent No. 6 in his application (supra), also submitted an application stating, inter alia, that they were restrained from attending the special meeting on 19.8.2021. But those 3 directors changing their earlier version, submitted, another application on 23.8.2021 before the respondent No. 4 stating that they had no grievance with regard to the holding of the special meeting on 19.8.2021 and had further expressed that they had no objection to the resolution adopted in the special meeting held on 19.8.2021. 3.5 In the subsequent period, the meetings of the Society were held on 2.9.2021 and 24.9.2021 wherein the respondent No. 6 and some of the Directors of the Society were present and adopted resolutions on different issues. The respondent No. 4 had, in the meantime, on the basis of the application submitted by the respondent No. 6 on 19.8.2021 and the applications submitted, by the other 3 directors of the Society called the parties for a hearing on 26.8.2021 in presence of the Assistant Registrar of Co-operative Societies, Tezpur (the respondent No. 5) and a Senior Inspector/Auditor of Co-operative Societies, Tezpur as an Observer. After hearing the parties on 26.8.2021, the respondent No. 4 had passed an Order on 21.9.2021. In his Order dated 21.9.2021, the respondent No. 4 had observed that even though the 3 No. of directors of the Society could not arrive at the venue of the special meeting in time due to detainment by the police the procedure required for removal of the President of the Board of directors of the Society was duly observed by the 8 No. of directors of the Board of directors of the Society in the special meeting held on 19.8.2021. The respondent No. 4 had also taken cognizance of the fact that the said 3 Directors of the Society submitted another application on 23.8.2021 expressing no objection for their absence in the special meeting held on 19.8.2021. The respondent No. 4, in his Order dated. 21.9.2021, had observed that the respondent No. 5 could, consider to approve the resolution taken in the special meeting held on 19.8.2021 in respect of the motion of no confidence, as per the provisions of the 2007 Act, after observing all other aspects. 3.6 Challenging the Order dated 21.9.2021 passed by the respondent No. 4, the respondent No. 6 instituted a writ petition, WP(C) No. 5106/2021 before this court. The writ petition, WP(C) No. 5106/2021 came up for consideration on 4.10.2021. Taking note of the events occurred preceding the Order dated 21.9.2021; and having regard to the facts that (a) the respondent No. 5 had not till then taken any decision with regard to according approval to the resolution dated 19.8.2021 passed in the matter of no confidence motion against the respondent No. 6 on the basis of the Order dated 21.9.2021 of the respondent No. 4; and (b) that the respondent No. 6 had preferred an appeal before the Registrar on 22.9.2021 which was pending for disposal, the court directed the Registrar to dispose of the appeal preferred by the respondent No. 6 on or before 18.10.2021. It was further observed that till disposal of the appeal, the respondent No. 5 shall not give any effect to the order dated 21.9.2021 passed by the respondent No. 4. 3.7 Subsequent to the disposal of the writ petition, WP(C) No. 4.10.2021, the petitioners herein submitted a written objection in the appeal pending before the Registrar on 11.10.2021 highlighting the relevant issues from their end. 4. 3.7 Subsequent to the disposal of the writ petition, WP(C) No. 4.10.2021, the petitioners herein submitted a written objection in the appeal pending before the Registrar on 11.10.2021 highlighting the relevant issues from their end. 4. It is in the afore-stated backdrop of events, the impugned order dated 11.10.2021 came to be passed by the Registrar of Co-operative Societies, Assam after hearing all the stakeholders including the respondent No. 4, the respondent No. 5 and the respondent No. 6. As per the contents of the order dated 11.10.2021, the Registrar during the hearing recorded the oral depositions of the parties and had also perused the relevant records and the report of the Observer who attended the hearing before the respondent No. 4 and also the order dated 21.9.2021 passed by the respondent No. 4. 5. The Registrar in the impugned order dated 16.10.2021 had observed to the effect that since in the special meeting of the Board of directors of the Society, the President of the Society, i.e., the respondent No. 6 was absent and the discussion was held in his absence, there was denial of opportunity to the respondent No. 6 to explain the circumstances in his defence. The above goes to imply that in the opinion of the Registrar, the special meeting ought not to have proceeded in the absence of the respondent No. 6, the person who was facing the motion of no confidence. It has been held that since the special meeting on 19.8.2021 was not held as per the provisions of the 2007 Act, the resolution adopted in the special meeting was liable to be set aside and to be declared as null and void. By holding so and by setting aside the resolution adopted in the special meeting dated 19.8.2021, the Registrar by his order dated 16.10.2021, directed the respondent No. 6 as the President of the Society to call a special meeting of the Board of directors of the Society in conformity with the provisions of section 43(2) of the 2007 Act to take a decision in the matter of removal of the President of the Board, of the Society in conformity of the provisions of section 46(4) of the 2007 Act. 6. I have heard Mr. B.D. Das, learned senior counsel assisted by Mr. D. Kalita, learned counsel for the petitioner; Mr. 6. I have heard Mr. B.D. Das, learned senior counsel assisted by Mr. D. Kalita, learned counsel for the petitioner; Mr. S.K. Talukdar, learned standing counsel, Co-operation Department for the respondent Nos. 1-5; and Mr. B. Chakravarty, learned counsel for the respondent No. 6. 7. It is apposite to mention that when the writ petition was moved on 1.11.2021, an interim order was passed suspending the impugned order dated 16.10.2021 and all other consequential actions taken on that basis. The interim order dated 1.11.2021 was continued by subsequent orders. On 1.4.2022, the respondent No. 6 has preferred an interlocutory application seeking vacation/modification of the interim orders passed in the writ petition in connection with the impugned order dated 16.10.2021 and the said interlocutory application has been registered and numbered as I.A.(Civil) No. 1104/2022. As Mr. Chakravarty, learned counsel for the respondent No. 6 has submitted that since the issues involved in the writ petition are only legal issues, the pleadings in the interlocutory application, LA.(Civil) No. 1104/2022 can be taken as the stand of the respondent No. 6 by treating it as a counter-affidavit of the respondent No. 6 to the writ petition, preferred by the petitioners. As the learned counsel for all the parties have, in unison, submitted that instead of the interlocutory application, the writ petition can be taken up for final consideration of the issues involved in the writ petition, the learned counsel for the parties are heard accordingly. The learned counsel for the parties by referring to the impugned order dated 16.10.2021 have also submitted conjointly that since the relevant records have been perused by the Registrar in passing the impugned order, recording the findings on facts, the same are not required to be gone into in the writ petition and they would make submissions on the legal issues based on such findings on facts by the Registrar. 8. Mr. Das, learned senior counsel for the petitioners has submitted that the respondent No. 6 had convened the special meeting himself by making his endorsement in the requisition notice dated 5.8.2021 and as such, it is not open for him at a later point of time to Lake a stance that he did not attend the special meeting. 8. Mr. Das, learned senior counsel for the petitioners has submitted that the respondent No. 6 had convened the special meeting himself by making his endorsement in the requisition notice dated 5.8.2021 and as such, it is not open for him at a later point of time to Lake a stance that he did not attend the special meeting. In fact, the Registrar in his order dated 16.10.2021 had recorded the finding to the effect that the respondent No. 6 and one of the directors left the venue of the special meeting before the start of the proceedings of the special meeting, meaning thereby, he came to the venue of the special meeting wherein the only agenda was a discussion on the motion of no confidence. As 8 Directors of the Society who attended the meeting, voted against the respondent No. 6 the motion was passed by requisite strength in conformity with section 36(4) of the 2007 Act. In a matter of removal of the President of a Co-operative Society on the ground of loss of confidence there is no requirement to afford any opportunity to such a person to explain as such disqualification is incurred due to loss of confidence by the requisite majority of the members under the relevant statute. In such view of the matter, the Registrar had erred in observing that the discussion should have been held in presence of the respondent No. 6. The provisions contained in the 2007 Act is silent on that aspect and as such, the Registrar could not have held that special meeting was held not as per the provisions of the 2007 Act. It is his submission, by referring to the decision of the Hon’ble Supreme Court of India in Ashok Kapil v. Sana Ullah (Dead), (1996) 6 SCC 342 , that one cannot be allowed to take advantage of his own wrong. By placing a decision of the Hon’ble Supreme Court of India in Ashok Kumar Jain v. Sumati Jain, (2013) 14 SCC 123 , he has submitted that it is always open for the court to examine whether a person is taking any advantage of his own wrong and if it is found that person has taken any advantage of his own wrong, such a person is not entitled to any relief. By referring to the provisions contained in section 36(4) of the 2007 Act, Mr. By referring to the provisions contained in section 36(4) of the 2007 Act, Mr. Das has submitted that the motion was passed indisputably by not less than three-fourths of the Directors of the Society present and voting and, thus, there could not be any interference on that count and the Registrar also did not record any finding on that aspect which goes to imply that the motion was passed by the requisite numbers. 9. Mr. Chakravarty, learned counsel for the respondent has submitted that it is a mandate of the 2007 Act that the co-operative societies being democratic organizations and being controlled by their members. Therefore, the members are to be allowed to participate in every proceedings actively in order to exercise their voting rights. But in the case in hand, 3 No. of directors of the Society were prevented from attending the special meeting, held on 19.8.2021. It was in such situation, the respondent No. 6 and another Director of the Society had to leave the venue of the special meeting in protest before initiation of any discussion on the motion of no confidence, pursuant to the requisition notice submitted by 8 No. of directors of the Society. It was only those 8 No. of directors of the Society who submitted the requisition notice., remained at the venue of the special meeting and stated to have been discussed and passed the resolution against the respondent No. 6. Had those 3 Directors of the Society managed to reach the venue of the special meeting and to participate in the special meeting held on 19.8.2021, the outcome of the proceedings might have been different. Thus, the Registrar was right in holding that the discussion in the special meeting should have been held in presence of respondent No. 6 as it was he who was facing the motion of no confidence and the respondent No. 6 was entitled to due opportunity to present his case in respect of the allegations brought against him by the others. Since the democratic principles are found to have been violated as the 3 Nos. Since the democratic principles are found to have been violated as the 3 Nos. of directors of the Society were unable to attend the special meeting due to certain act of restraint by the police, the respondent No. 6 is entitled to and should be given an opportunity to call for a special meeting afresh to discuss the motion of no confidence brought against him, as ordered by the Registrar. 10. Mr. Talukdar, learned standing counsel. Co-operation Department has submitted that the provisions relating to removal of the President or the Vice President of a registered cooperative society, contained in the 2007 Act, are to be considered by taking into consideration the political philosophy and governance of democratic institutions into purview. While submitting that he would not address on the first two aspects urged already by the learned counsel for the petitioners and the learned counsel for the respondent No. 6, he has made submissions with regard to compliance or non-compliance of the provisions on the point of majority contained in section 36(4) of the Act, 2007. It is his contention that the three-fourths majority is to be calculated by taking into account the total strength of the Directors in the Board of the Society concerned. Since in the Society under reference, there are 13 No. of directors in the Board of the Society the three-fourths majority of these total number of Directors in the Board of the Society has to vote in favour of any motion of no confidence against the President or the Vice-President, as the case may be. If the three-fourths majority is calculated on the basis of the directors who would appear in the special meeting then the entire purpose of formation of cooperative societies based on democratic principles would be lost. Since there was no three-fourths majority with only 8 No. of directors in the special meeting held on 19.8.2021, the direction of the Registrar to hold a special meeting is correct from all perspectives. By submitting as such, he has supported the impugned order dated 16.10.2021. 11. I have duly considered the submissions advanced by the learned counsel for the parties and also perused the materials on record brought by the parties through their pleadings. I have also gone through the other decisions cited above at the Bar, reference of which would be made in the subsequent paragraph of this order. 12. 11. I have duly considered the submissions advanced by the learned counsel for the parties and also perused the materials on record brought by the parties through their pleadings. I have also gone through the other decisions cited above at the Bar, reference of which would be made in the subsequent paragraph of this order. 12. Before any dilation on the issues raised and involved in this writ petition, it is apposite to refer to the relevant provisions of the 2007 Act. As per section 2(g), ‘Board’ means the Board of directors or the Governing Body of a co-operative society to which the direction and control of the management of the affairs of a society is entrusted to. As per section 35, there shall be a Board for the management of every cooperative society registered under the Act, 2007 and the Directors of the Board shall be elected in accordance with the provisions of the bye-laws. The term of the Board of directors, as per section 31, shall be 5 Co-operative years. As laid down in sub-section (1) of section 36, there shall be a President and a Vice-President' in a cooperative society to be elected by the Board from amongst its Directors in accordance with the provisions of the bye-laws. The term of President and Vice-President elected by the Board shall be co-terminus with the term of the Board. Section 42(1) has prescribed that the tenure of office of the elected members of the Board and its office bearers shall be five years from the date of election, provided that the tenure of office bearers shall be co-terminus with the tenure of the Board. Section 43 has provided for the Board meeting. As per sub-section (2) of section 43, the President or Chairman and in the event of his being physically incapable of acting, the Vice-President or Vice-Chairman may, whenever he thinks fit, call a special meeting of the Board and shall be bound to do so within 15 days of the date of receipt of a written requisition - (a) signed by not less than one-third of the Directors of the Board; or (b) from the Registrar; or (c) from the auditor. Such requisition shall contain the reasons as to why the meeting is felt necessary and the proposed agenda and no subject other than the subjects included in the proposed agenda shall be discussed at the special meeting of the Board. Xxxxx xxxxx 15. From the requisition notice dated 5.8.2021, it is evident that the same was submitted by 8 No. of directors of the Society, thus, fulfilling the requirement of section 43(2)(a) of the Act, 2007. The requisition notice dated 5.8.2021 had mentioned that the 8 No. of directors of the Board of the Society had expressed want of confidence in the petitioner to continue as the President of the Board of the Society and had called for an immediate special meeting of the Board of the Society for a discussion on the motion of no confidence. The respondent No. 6 as the President of the Society upon receipt of the requisition notice dated 5.8.2021, by his endorsement dated 9.8.2021, had convened the special meeting of the Board of directors of the Society on 19.8.2021 in conformity with the provisions of sub-section (2) of section 43 of the Act. The notice issued by the Secretary of the Society on 12.8.2021 had clearly mentioned that the agenda of the special meeting, scheduled on 19.8.2021, would be a discussion on the motion of no confidence brought against the respondent No. 6. 16. The Registrar of Co-operative Societies after hearing all the stakeholders and upon perusal of the records had recorded his findings on facts in the impugned order dated 16.10.2021 in the following manner: “On perusal of the records it was found that a meeting “was convened to remove Sri Humai Das, Chairman of the Society moving no confidence motion on 19.8.2021; but Sri Humai Das and 1 BOD member Sri Krishna Das left the meeting before start of the meeting and the BOD meeting held with 8 BOD members passed the resolution removing Sri Humai Das from the post of the Chairman where in 3 members could not attend but later on they supported the move for removal of the President.” 17. The Registrar of Co-operative Societies as the appellate authority had recorded his above findings on facts. The Registrar of Co-operative Societies as the appellate authority had recorded his above findings on facts. Though a submission has been advanced on behalf of the respondent No. 6 that 3 No. of directors of the Society were impeded to attend the special meeting held on 19.8.2021, the Registrar in its impugned order had specifically recorded that those 3 No. of directors of the Society could not attend the special meeting, without making any mention of aspects like obstruction, etc. The Registrar had also recorded that later on, those 3 No. of directors of the Society supported the move for removal of the President of the Board of the Society, i.e., the respondent No. 6. This court in its extra-ordinary jurisdiction under article 226 of the Constitution of India while exercising the power of the judicial review does not ordinarily, interfere with findings of fact reached by a fact-finding authority. It is true that this court in exercise of its writ jurisdiction is competent to interfere with findings of fact but such interference is done only upon application of well-known legal principles such as when it is perverse or when findings have been arrived at on the basis of irrelevant factors or extraneous consideration or when the view-taken cannot be sustained on reasonable consideration of the materials, etc. This court does not act as a court of appeal or does not sit in review of decision of the fact-finding authority. Thus, this court finding no irregularities of grave nature in reaching at the above finding on facts by the Registrar as the appellate authority and the fact-finding authority, has to proceed further on the basis of such finding on facts. 18. It is in such backdrop of events, the first two aspects on which the Registrar has held the resolution adopted in the special meeting to be not in conformity with the provisions of the Act, 2007, are required to be examined. 18. It is in such backdrop of events, the first two aspects on which the Registrar has held the resolution adopted in the special meeting to be not in conformity with the provisions of the Act, 2007, are required to be examined. It can be iterated that the first aspect is whether the presence of the President of Board of the Society is essential in the special meeting where the motion of no confidence, brought against him, is going to be discussed; and the second aspect is whether the President of the Board of the Society who is facing the motion of no confidence, should be given an opportunity of hearing to explain his position in defence in such a special meeting. 19. Sub-section (4) of section 36 has provided that the Board may, by a resolution passed by ‘three-fourths majority of the directors present and voting at a meeting held for the purpose’, remove the President or Vice-President. Such meeting shall not be presided over by the President or Vice-President against whom such resolution is to be considered. 20. The matter of removal of an elected office-bearer on the strength of a no confidence motion cannot be equated in law to a removal of such elected office-bearer relatable to any kind of disciplinary action or disqualification on any other ground provided in the governing statute. The removal of such an elected office-bearer like the President of the Board of directors of a co-operative society for loss of confidence in him by the requisite number of the Directors in the Board of the Society cannot be bracketed with the removal of the President from office on the ground of any impropriety or misconduct or other kind of disqualification provided in the 2007 Act as the first kind of removal results simply from the loss of confidence in him by the requisite majority without any stigma attached to it. Thus, it is relatable to only want of confidence and not removal relatable to any misconduct or impropriety on the part of the elected office bearer, which can be stigmatic in nature. Thus, it is relatable to only want of confidence and not removal relatable to any misconduct or impropriety on the part of the elected office bearer, which can be stigmatic in nature. The concept of the tenure of an elected office-bearer of any institution governed by democratic principles is controlled by the limitation of no confidence and the fixed tenure provided in the governing statute can get shortened due to removal from loss of confidence in such elected office-bearer by the requisite majority, as provided for in the governing statute. This truncation in the tenure in view of removal of an elected office bearer on the basis of a motion of no confidence is based on the principle that the elected office bearer against whom such motion is passed, has ceased to enjoy the support and confidence of the requisite majority of members, as fixed by the governing statute. Thus, a vacation of office of the President of the Board of a co-operative Society under sub-section (4) of section 36 of the Act, 2007 is completely different from the removal from the office of the President of the Board of the society on the ground of misconduct, impropriety, incapacity, etc. Although a ground may be mentioned while moving a motion of no confidence, the existence of a ground is not a pre-requisite in the motion of no confidence. The only requirement in a motion of no confidence against the elected office bearer is that the elected office bearer against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of the concerned electorate body as per the governing statute. But in case of removal of an elected office bearer from the office on grounds of misconduct, impropriety, incapacity, etc. There is necessity of meeting two requirements, firstly, presence of grounds like misconduct, impropriety, incapacity, etc., and, secondly, grant of reasonable opportunity to the elected office-bearer to furnish his explanation against such allegations. But in case of removal of an elected office bearer from the office on grounds of misconduct, impropriety, incapacity, etc. There is necessity of meeting two requirements, firstly, presence of grounds like misconduct, impropriety, incapacity, etc., and, secondly, grant of reasonable opportunity to the elected office-bearer to furnish his explanation against such allegations. The twin requirements of existence of grounds of misconduct, impropriety, incapacity, etc., and affording the reasonable opportunity of being heard are not applicable to the elected offices where a person is so elected by majority in accordance with statutory provisions and there is hardly any application of those two requirements in a proposal for moving a no confidence motion as the matter of no confidence motion is also controlled by the specific provisions in the governing statute. The Board of directors of a co-operative society constitutes of the directors elected by ail the shareholder members of the co-operative society who are eligible to vote, as the provisions of the 2007 Act and the bye-laws of the concerned co-operative society'. The democratic principles require that a person who attains the position of a President or Vice-President, as the case may be, in the Board of directors of a co-operative society could be removed by the same body of electorate, that is, the Directors in the Board which, on an earlier occasion, elected them to that position by taking recourse to a no confidence motion and in accordance to the governing statutory provisions. The inherent principle is that the body of electorate that elects a person to such a position would and ought to have the right to oust him from that post, in the event the requisite majority of members of the body of electorate do not support and have lost confidence in the said person at that time. 21. The inherent principle is that the body of electorate that elects a person to such a position would and ought to have the right to oust him from that post, in the event the requisite majority of members of the body of electorate do not support and have lost confidence in the said person at that time. 21. In the above view of the matter, this court is of the considered view-that in the case of an elected office-bearer in the Board of directors of a Co-operative Society who has been elected either in the capacity of the President or the Vice-President, as the case may be, of the Board of a cooperative society it is not an indispensible rule that he must be present in the special meeting and he is to be provided with the opportunity' to explain his position in defence in the meeting which is specially convened on the basis of a requisition notice of the requisite number of members where it is expressed that the person has ceased to enjoy the support and confidence of the majority. Conspicuously, the statute, i.e., the 2007 has also maintained silence in this regard. There are no statutory provision mandating that a no confidence motion cannot be passed in a special meeting in absence of person against whom the motion is. If the President or the Vice-President, as the case may be, of the Board of a co-operative society is not served with a prior notice and has no prior knowledge about' the no confidence motion to be discussed in a special meeting the position might be different. But, such is not the position in the case in hand. 22. At this juncture, it is also apposite to refer to the observations made by the Hon’ble Supreme Court of India in Pratap Chandra Mehta v. State Bar Council of Madhya Pradesh, (2011) 9 SCC 573 . The subject-matter considered in that case was a resolution passed on a motion of no confidence against the Chairman, Vice-Chairman and the Treasurer, respectively of the State Bar Council of Andhra Pradesh. A special meeting was called for to discuss the motion of no confidence against those office bearers and in the said special meeting, the Chairman and the Vice-Chairman were present at the initial stage of the meeting. A special meeting was called for to discuss the motion of no confidence against those office bearers and in the said special meeting, the Chairman and the Vice-Chairman were present at the initial stage of the meeting. There was some discussion on the issues and after sometime, the Chairman/Vice-Chairman had walked out of the meeting. Thereafter, the Advocate General of the State had to preside over the meeting and a no confidence motion was stated to have been passed by the requisite majority of members present in the meeting. Commenting on the approach, taken by the Chairman/Vice-Chairman of leaving the venue of the special meeting in the midway, the Hon’ble Supreme Court of India had held that the approach adopted by them was ex facie untenable and without any basis. It was the duty of the Chairman/Vice-Chairman to face the no confidence motion, as they were elected office bearers and if they had lost the confidence of majority to continue as such office bearers and no confidence motion had been moved against them by following due procedure, they were expected to face the consequences thereof and the same only would have served the ends of democratic governance and proper functioning of the State Bar Council. The Hon’ble Supreme Court of India had, thus, held that even on that ground any challenge to the passing of no confidence motion cannot succeed. 23. Reverting back to the facts of the case, the Registrar in the order dated 16.8.2021 upon perusal of the records, found that the special meeting was convened to discuss the motion of no confidence against the respondent No. 6 in his capacity as the President of the Society and the special meeting was convened only after receipt of approval from the respondent No. 6. There is findings on the facts to the effect that the respondent No. 6 and one of the Directors of the Society left the meeting before initiation of any discussion on the motion of no confidence. There is findings on the facts to the effect that the respondent No. 6 and one of the Directors of the Society left the meeting before initiation of any discussion on the motion of no confidence. Thus, it is not open for the respondent No. 6 to contend that the resolution that was passed expressing want of confidence in him as the President of the Board of the Society in his absence is either in violation of the democratic principles when the democratic principle required him to face the motion or in violation of the principles of natural justice as the removal is due to failure on his part to enjoy the support and confidence of requisite number of Directors in the Board of the Society who are also elected office bearers of the co-operative society. There cannot be any countenance to such a plea as the same would amount to extension of an advantage to one who is found to have committed a wrong himself by leaving the meeting without facing the meeting. He himself had waived the opportunity of explaining his situation in defence, though in a no confidence motion grant of such opportunity is not a requisite. 24. In the light of the above discussion, this court is of the unhesitant view that the decisions rendered by the Registrar in the impugned order dated 16.10.2021 on the afore-stated two aspects are not sustainable in law and the same is to be interfered with. The interference is accordingly done. 25. Insofar as the question of passing of the motion of no confidence is concerned, it has been laid down in sub-section (5) of section 43 of the Act, 2007 that the quorum for a meeting of the Board of directors of a co-operative society shall be such as may be specified in the bye-laws of the co-operative society but shall not be less than fifty per cent of the total number of Directors in the Board of the co-operative society. None of the parties has placed the bye-laws of the Society before the court. 26. None of the parties has placed the bye-laws of the Society before the court. 26. Since it is an undisputed fact that the Board of directors of the Society consists of 13 No. of directors it is clear that even if one takes the number of Directors of the Board present either at 10 or at 8 there was requisite quorum for the special meeting of the Board as the number of Directors which was required to form the quorum would be 7. The 2007 Act has not provided for any specific and separate provision regarding the quorum for a special meeting convened for discussing a motion of no confidence and in view of such absence, the quorum has to be held as same, as provided in section 43(5), for an ordinary meeting of the Board as well as for a special meeting of the Board. 27. The co-operative societies registered under the Assam Co-Operative Societies Act, 2007, as amended, (‘the 2007 Act’ and or ‘the Act, 2007’) function as democratic institutions and conduct their affairs based on democratic principles. That democratic principles should, govern and regulate the affairs of the co-operative societies registered under the Act, 2007 is discernible from the Preamble of the 2007 Act itself. The Preamble states that the Act, 2007 is to consolidate and amend the law relating to co-operative societies in the State of Assam to facilitate the voluntary formation and democratic functioning of co-operative societies as people's institutions based on self-help and mutual aid and to enable them to promote their economic and social betterment. The 2nd Principle of the Co-operative Principles, embodied in Schedule-A of the 2007 Act, has, inter alia, laid down that the co-operative societies are democratic organizations controlled by their members, who actively participate in setting their policies and making decisions. It has further mentioned that men and women serving as elected representatives are accountable to the members. 27.1 The democratic principles demand accountability in and acceptability of the activities of the President of the Board of a registered co-operative society in view of the fact that certain important duties and responsibilities have been entrusted in such President under the provisions of the Act, 2007 for running its affairs. 27.1 The democratic principles demand accountability in and acceptability of the activities of the President of the Board of a registered co-operative society in view of the fact that certain important duties and responsibilities have been entrusted in such President under the provisions of the Act, 2007 for running its affairs. It can be reiterated that the directors to the Board of a registered society are elected in an election where all the members of such co-operative society who are eligible to vote, take part and exercise their right to vote. It is the directors so elected to Board of the Society, maximum 15 in number, who thereafter, elect a President and a Vice-President for the Board, of the co-operative society from amongst themselves in accordance with the provisions of the bye-laws and the term of the President and the Vice-President so elected by the Directors in the Board, of the Society, is co-terminus with the term of the Board. 27.2 Since a co-operative society is an institution which runs on the democratic principles, any person who gets elected to head the body who manages the affairs of such a co-operative society, that is, the Board of directors which also runs on democratic principles, can continue till such time he enjoys the support and confidence of the persons who comprise the concerned body. If a procedure is prescribed in the governing statute regarding election of an office-bearer by a body of electorate and for removal thereof, by way of a motion of no confidence, then such procedure has to be followed. As such statutory provision provides the safeguard that such an office-bearer can continue to function so long as he enjoys the support and confidence of the body of electorate who has elected him to such a position, existence of a provision to remove him from such a position by way of a no confidence motion is necessary concomitant for ensuring accountability. From the provisions contained in section 36 of the 2007 Act, more particularly, sub-section (4) thereto, it clear that if a no confidence motion is passed against the President of the Board of a co-operative society, he ceases to be the President of the Board of the co-operative society only, but he continues to be a Director in the Board of the co-operative society and the co-operative society thereafter, continues with a newly elected President of the Board of the Society and removal of such a President on the basis of a no confidence motion does not result in any kind of instability or discontinuity in running the affairs of the concerned co-operative society. 27.3 The third issue which arises for consideration, in view of the submission advanced by the standing counsel of the Co-operation Department, is that what shall be the three-fourths majority of the directors to hold the no confidence motion to be passed in the special meeting in the fact situation obtaining in the case in hand. Admittedly, there are 13 Nos. of directors in the Board of the Society at the relevant point of time. Out of these 13 No. of directors, 3 No. of directors did not appear on or before the scheduled time and at the venue of the special meeting on 19.8.2021. The remaining 10 No. of directors including the respondent No. 6, were present at the venue of the special meeting on or before the scheduled time but before initiation of any discussion on the motion of no confidence, the respondent No. 6 and another Director left the venue of the special meeting. As a result, 8 No. of directors participated and took part in the discussion on the motion of no confidence against the President of the Board, i.e., the respondent No. 6. 27.4 Sub-section (4) of section 36 of the 2007 Act refers to majority as ‘three-fourths majority of the directors present and voting at a meeting held for the purpose’ and ‘the purpose’ is to remove the President or the Vice-President of the Board, as the case may be, for loss of confidence. 27.4 Sub-section (4) of section 36 of the 2007 Act refers to majority as ‘three-fourths majority of the directors present and voting at a meeting held for the purpose’ and ‘the purpose’ is to remove the President or the Vice-President of the Board, as the case may be, for loss of confidence. It has been observed by the Hon’ble Supreme Court of India in Lily Thomas (Ms.)., Advocate v. Speaker, Lok Sabha, (1993) 4 SCC 234 , that voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question. Right to vote means right to exercise the right in favour of or against the motion or resolution and such a right implies right to remain neutral as well. Conceptually, neutrality to the motion is not aligning with either view. It has been held that when a person entitled to vote on a resolution participates in discussion but abstains from voting, it is neither neutrality nor expression of opinion one way or the other but still it is legitimate and valid. It has been further held that in removal of an elected representative by vote of no confidence neutrality, partial or complete, is not unknown. It has been held that abstaining or refusal to express opinion by casting vote in favour of or against the motion cannot be construed as deemed support for the motion since there is no scope of assumed voting. The principle which is deducible from the decision in Lily Thomas (supra) is that non-exercise of right to vote or abstention from voting by a member, even though present in the course of the proceedings, does not amount to mean that the member has supported the motion of no confidence. Taking note of a situation that one may be present and yet not voting, the Hon’ble Supreme Court had gone on to observe that use of the expression, ‘not less than two-thirds of the members present and voting’ used in article 124(4) of the Constitution of India implies that the motion shall be carried only if the requisite numbers expressed their opinion by casting votes in support of the motion. The same analogy is found applicable in the case in hand. The same analogy is found applicable in the case in hand. Taking a cue from the above analogy, when the expression, ‘three-fourths majority of the directors present and voting at a meeting held for the purpose’ appearing in section 36(4) of the 2007 Act is considered along with the provisions contained in sub-section (5) of section 43 of the 2007 Act, this court is of the clear view that the computation of requisite three-fourths majority has to be made on the basis of the number of Directors who are present and have also voted in the special meeting. In view of such conclusion, the submissions advanced by the learned Departmental counsel on the aspect of majority are found not acceptable. As it has emerged as a fact from the records that the respondent No. 6 and one of the Directors in the Board of the Society had left the special meeting prior to the start of its proceeding they, in the context of section 36(4) of the 2007 Act, cannot be taken into consideration for the purpose of counting three-fourths majority since they did not vote. From the records, it has emerged that 8 No. of directors of the Society were present in the special meeting and all of them had voted. It is out of those 8 No. of directors of the Society who were present and had also voted, the majority of three-fourths is to be calculated in order to find out whether a motion was passed or not passed. Viewed in that context, as all the 8 No. of directors of the Society were present and had voted in favour of the motion, the motion of no confidence against the respondent No. 6 for his removal from the office of the President of the Society for loss of confidence in him has to be held as passed. 28. With the passing of the resolution by a requisite three-fourths majority of the directors present and voting in the special meeting held on 39.8.2021 expressing want of confidence against the President of the Society, i.e., the respondent No. 6, the office of the President of the Society is held to have been vacated by the respondent No. 6. 29. 28. With the passing of the resolution by a requisite three-fourths majority of the directors present and voting in the special meeting held on 39.8.2021 expressing want of confidence against the President of the Society, i.e., the respondent No. 6, the office of the President of the Society is held to have been vacated by the respondent No. 6. 29. Sub-section (2) of section 36 of the 2007 Act has, inter alia, mentioned that vacancy in the office of the President in the Board of a co-operative society shall be filled in by the Board in accordance with the provisions of the bye-laws and the President so elected shall hold office for the unexpired term of his predecessor. Sub-section (6) of section 36 of the 2007 Act has provided that in the event of occurrence of any vacancy in the office of the President of the Board of a co-operative society by reason of his death, resignation or removal or otherwise, the Vice-President' shall act as President until the date on which a new President is elected in accordance with the provisions of the Act, 2007 and the bye-laws to fill such vacancy. 30. In the light of the above discussion and for the reasons assigned therein, the writ petition stands allowed. The impugned order dated 16.10.2021 passed by the Registrar is set aside and quashed. As a corollary, the Society in consultation with the respondent-authorities shall proceed to consider the matter of filling up the vacancy of the President in the Board of the Society in compliance of the provisions of the 2007 Act and, more particularly, the provisions contained in sub-sections (2) and (6) of section 36 of the 2007 Act. The interim order dated 1.11.2021 stands merged with this order. There shall be no order as to cost.