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2025 DIGILAW 614 (GAU)

Ainul Ali And Ors S/o Abdul Ali v. State of Assam

2025-04-05

MANISH CHOUDHURY

body2025
ORDER : MANISH CHOUDHURY, J. Heard Mr. M.K. Hussain, learned counsel for the petitioners and Ms. S.T. Bakt, learned counsel representing Mr. S.K. Talukdar, learned Standing Counsel, Cooperation Department for the respondent nos. 1, 2, 3, 4, 5, 7 & 8. 2. In view of the limited nature of the grievance raised in this writ petition by the petitioners, the writ petition is taken up for final consideration at the motion stage itself, as agreed to by the learned counsel for the parties. 3. The petitioners, three in nos., are shareholders of M/s Madhyam Barkhetri Bahumukhi Samabay Samity Limited [‘the Society’, for short], a cooperative society registered under the provisions of the Assam Cooperative Societies Act, 2007, as amended, [‘the Act, 2007’, for short]. As the earlier Board of Directors of the Society failed to hold the Annual General Meeting [AGM] / Election within the stipulated time period provided under the Act, 2007, the Board of Directors of the Society stood automatically dissolved by operation of law prescribed in Section 39 of the Act, 2007. After dissolution of the Board of Directors of the Society, the respondent no. 3 by an Office Order dated 23.10.2024 appointed One Man Management Committee for the Society in exercise of powers conferred on him under Section 41[6] of the Act, 2007 with a further direction to the One Man Management Committee to perform all functions of the Board of the Society and to convene the AGM / Election for the Society and to constitute Board of Directors within a period of ninety days at the cost of the Society. 4. After assuming the charge, the One Man Management Committee proceeded to prepare a list of members with right to vote and a list of members without right to vote, as per the provisions of Section 26[3] of the Act, 2007. At the stage of preparing lists of members, complaints were submitted to the effect that in the draft list of members, the names of a number of dead persons got included and representations were made before the One Man Management Committee that he should remove the names of dead persons from the draft list. As the process of holding the AGM / Election did not progress as expected, the term of the One Man Management Committee was extended for a further period of ninety days vide an Office Order dated 27.01.2025. As the process of holding the AGM / Election did not progress as expected, the term of the One Man Management Committee was extended for a further period of ninety days vide an Office Order dated 27.01.2025. When finally the list of members of the Society was published under the seal and signature of the respondent no. 4 on 19.03.2025, it came to the notice of the petitioners that in the said list of members prepared by the respondent no. 4, the names of a nos. of dead persons have been included. The One Man Management Committee has, in the meantime, published a Notice notifying the shareholders of the Society that the next AGM / Election to the Board of Directors of the Society would be held on 19.04.2025. The timeline for submission of nominations to contest election for the Board of Directors of the Society have also been notified in the meantime. 5. As it came to the notice of the petitioners that in the list of voters prepared by the respondent no. 4 on 19.03.2025, the names of forty-six nos. of dead persons have not been deleted, the petitioners stated to have submitted a representation before the respondent no. 3 as well as the respondent no. 4 on 27.03.2025, that is, prior to the publication of the Notice for the AGM / Election on 30.03.2025. 6. In this connection, the provisions of sub-section [3] of Section 26 of the Act, 2007 and Rule 3[h] of the Assam Cooperative Societies’ Election Rules, 2019 [‘the Rules, 2019’, for short] are of relevance and import and the same are quoted hereinbelow :- 26. Rights and liabilities of members of registered societies and exercise of rights thereof – [3] The Chief Executive of every cooperative society within twenty days of closure of the previous cooperative year, shall prepare a list of members with the right of vote, and a list of members without the right of vote, valid for the current financial year. Rights and liabilities of members of registered societies and exercise of rights thereof – [3] The Chief Executive of every cooperative society within twenty days of closure of the previous cooperative year, shall prepare a list of members with the right of vote, and a list of members without the right of vote, valid for the current financial year. The list shall be affixed on the notice board of the Head office of the cooperative society for information of all members and any member not satisfied with specific instances of inclusion or non- inclusion of members in the lists, may appeal to the Board within ten days from the date of the affixing of the lists on the notice board, for re-examination of the records, and the Board shall within forty days of closure of the previous cooperative year, review the lists, finalise it, and have it affixed on the notice board of the Head office of the cooperative society : Provided that a member who is an employee or member of Employees Union of such society shall not be entitled to vote — [i] at election of a member of the Board of such society; [ii] in any general meeting convened for framing the bye- laws of such society or any amendments thereto. 3. Conduct of Election to Board of Directors of Cooperative Society . – [h] The concerned Chief Executive/Secretary of the society shall prepare and submit a list of members eligible to vote in the election as per Section 26[3] of the Act, to the Registrar/Election Authority, for countersignature to fulfill the requirement of Section 41[1]. The Registrar of Cooperative Societies [RCS] and Joint Registrar of Cooperative Societies [JRCS], Deputy Registrar of Cooperative Societies [DRCS], Assistant Registrar of Cooperative Societies [ARCS] concerned, in exercise of their delegated powers of the Registrar, shall ensure correctness of the voters list, after deleting names of dead voters in consultation with the Registrar of Birth and Deaths, incorporation of new voters, removing duplicate names etc. by inviting claims and objections, and comparison with the register of membership etc. 7. It is a statutory mandate on the part of the respondent no. 4 who has been delegated with the authority of the Registrar, to exercise superintendence, direction and control and to conduct the AGM / Election as per Section 41[1] of the Act, 2007 read with Rule 3[a] of the Rules, 2019. 7. It is a statutory mandate on the part of the respondent no. 4 who has been delegated with the authority of the Registrar, to exercise superintendence, direction and control and to conduct the AGM / Election as per Section 41[1] of the Act, 2007 read with Rule 3[a] of the Rules, 2019. The petitioners have cast obligation on the respondent no. 4 to ensure correctness of the list of voters after deleting names of dead voters in consultation with the Registrar of Births & Deaths, etc. Since a representation has been submitted by the petitioners specifically stating that there has been inclusion of forty-six nos. of dead persons in the list of voters including their names and registration numbers, this Court is of the considered view that the respondent no. 4 shall take the said representation on board and consider the same by taking into account the claims and objections made by the petitioners therein in the interest of fair election process and thereafter, dispose of the said representation on merits by passing a speaking order. As the election is imminent and has been notified on 19.04.2025, the respondent no. 4 shall complete the exercise on or before 11.04.2025. This Court is of the considered view that if the claims and objections of the petitioners turn out to be true, the same will result in deletion of names of the dead persons from the list and such deletion would not prejudice to anyone. It is clarified that this Court has not made any observation as regards the merits of the claim of the petitioners in the writ petition and the respondent no. 4 should consider the representation on its own merits and in accordance with law. As the direction has been made to the respondent no. 4 and the respondent no. 6 has no role to play in it, issuance of notice to the respondent no. 6 has been dispensed with. 8. With the observations made and the directions given above, the writ petition is disposed of. There shall, however, be no order as to cost.