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2017 Supreme(Gau) 11
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
A.K.GOSWAMI, J.
Md. Abdul Kasim, S/o Md. Islam Ali and Ors. – Petitioners
Versus
State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Cooperation Department and Ors. – Respondents
Writ Petition No. 6602 of 2016
Decided On : 02-01-2017
For the Petitioners: Ms M. Hazarika, Ms M.K. Borah
For the Respondent: Dr. B. Ahmed
Headnote:
Assam Cooperative Societies Act, 2007 – Section 2(h) , 26(3) , 39 and 41(6) - Cooperative Societies - Election of Society - Management of Society Ltd for short Society registered under Assam Cooperative Societies Act had failed to hold Annual General Meeting (AGM) for year by operation of Section 39 of Act, Managing Committee of Society stood automatically dissolved - Accordingly, by said order dated in exercise of powers conferred under Section 41(6) of Act, a one man ad hoc committee was constituted to manage affairs of Society as per Bye-laws of Society and to hold election within 90 days from date of issuance of order - Chief Executive of every cooperative society within twenty days of closure of previous cooperative year, shall prepare a list of members with the right of vote and a list of members without right of vote valid for current financial year - List shall be affixed on notice board of Head office of cooperative society for information of all members and any member not satisfied with specific instances of inclusion or non-inclusion of members in lists may appeal to Board within ten days from date of affixing of lists on notice board for re-examination of records and Board shall within forty days of closure of previous cooperative year review the lists finalise it and have it affixed on notice board – Held, Present petitioners that some of members of Board are only responsible cannot be countenanced - He has also submitted that voters list was not prepared and therefore there is no sanctity in meeting held - That apart, 15 days’ prior notice which is required to be given for holding AGM, was also not been given in instant case - Accordingly, it is submitted by him that there is no merit in writ petition and same is liable to be dismissed - It appears from minutes of meeting held on that decision was taken to do necessary preparation for holding the AGM - It is also recorded in said resolution that the members of Board of Directors had taken responsibility to serve notice on share holders door to door - Said resolution manifestly demonstrates that 15 days’ notice was not given - Out of 7619 members, only 85 members were present in the meeting held - Considered opinion that there is substance in argument of that there was failure on part of Board of Directors in holding the AGM of Society in accordance with provisions of Act and the Bye-laws within the time prescribed and therefore, it automatically got dissolved - Board is an entity and in context of the scheme of Act, all members of Board will have to take collective responsibility for failure to hold AGM and therefore argument of that members of Board of Directors who are not directly involved with holding of AGM should be allowed to continue has no force - Petition and accordingly, same is dismissed
Heard Ms M. Hazarika, learned senior counsel for the petitioners assisted by Mr. M.K. Borah, learned counsel as well as Dr. B. Ahmed, learned standing counsel, Cooperation Department appearing for the respondent Nos. 1 to 4. None appears for respondent Nos. 5 to 7 despite service of notice.
2. This writ petition is filed challenging the order dated 4.10.2016 issued by the Zonal Joint Registrar of Cooperative Societies, Tezpur Zone wherein it is recorded that as the Management of Bordolguri Samabai Society Ltd., for short, the Society, registered under the Assam Cooperative Societies Act, 2007, for short, the Act, had failed to hold the Annual General Meeting (AGM) for the year 2016-2017, by operation of Section 39 of the Act, the Managing Committee of the Society stood automatically dissolved. Accordingly, by the said order dated 4.10.2016, in exercise of powers conferred under Section 41(6) of the Act, a one man ad hoc committee was constituted to manage the affairs of the Society as per the Bye-laws of the Society and to hold the election within 90 days from the date of issuance of the order dated 4.10.2016.
3. Prayer is also made for setting aside the order dated 25.10.2016 passed by the Registrar of Cooperative Societies directing holding of AGM and fresh election of the Society. The order dated 25.10.2016 was passed on an appeal filed by some of the writ petitioners.
4. The society consists of 7619 share holders and the Board of Directors of the Society were elected on 3.7.2013 and their term was to expire in the month of June 2018.
5. It appears that the petitioner No. 1 was the Ex-Chairman of the Society and consequent upon his removal, one Kuldip Nath (respondent No. 7) was elected as Chairman on 13.7.2016 for the remaining term.
6. Sections 26(3) and 39 of the Act, which are relevant for the purpose of this case, are quoted here in below for better appreciation:
“26…………….
(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.
………………………………
39. Annual General Meeting. – A general meeting to be termed as Annual General Assembly of a registered Cooperative 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.”
7. It is submitted by Ms Hazarika that on 29.9.2016, AGM was convened but in the said meeting the Chairman of the Society was absent and as such the Vice-Chairman of the Society had presided over the said meeting. As there was lack of quorum, it was decided to hold the meeting again on 4.10.2016 at 10.00 AM and accordingly, the meeting was held on 4.10.2016 and many important decisions were taken. Ms Hazarika has submitted that for dereliction on the part o
