Gauhati High Court
Gulzar Hussain vs The State Of Assam And 11 Ors on 10 November, 2023
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/7
GAHC010250372023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6450/2023
GULZAR HUSSAIN
S/O LT MUSLEM UDDIN AHMED VIL. BOTABORI P.O. TENGAGURI P.S
LAHARIGHAT DIST. MORIGAON ASSAM PIN 782127
VERSUS
THE STATE OF ASSAM AND 11 ORS.
REP BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
CO OPERATION DEPTT DISPUR GUWAHATI 781006
2:THE REGISTRAR OF COOPERATIVE SOCIETIES
ASSAM
KHANAPARA GUWAHATI 781022
3:THE ZONAL JOINT REGISTRAR OF COOPERATIVE SOCIETIES
GUWAHAI ZONE BHANGAGARH GUWAHATI PIN 781005
4:THE DEPUTY REGISTRAR OF COOPERATIVE SOCIETIES
NAGAON
P.O. AND PS AND DIST NAGAON ASSAM PIN 782001
5:THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES MORIGAON
PO P.S. AND DIST. MORIGAON ASSAM PIN 782105
6:THE CHAIRMAN (ONE MAN ADHOC COMMITTEE)
TENGAGURI SS LTD C/O THE ASSISTANT REGISTRAR OF COOPERATIVE
SOCIETIES MORIGAON PO P.S. AND DIST. MORIGAON ASSAM PIN 782105
7:THE RETURNING OFFICER
AGM ELECTION
OF TENGAGURI SS LTD C/O THE ASSISTANT REGISTRAR OF
COOPERATIVE SOCIETIES MORIGAON PO P.S. AND DIST. MORIGAON
Page No.# 2/7
ASSAM PIN 782105
8:THE OBSERVER
AGM/ELECTION OF
TENGAGURI SS LTD C/O THE ASSISTANT REGISTRAR OF COOPERATIVE
SOCIETIES MORIGAON PO P.S. AND DIST. MORIGAON ASSAM PIN 782105
9:THE SECRETARY
TENGAGURI SS LTD P.S. LAHARIGHAT DIST. MORIGAON ASSAM PIN
782127
10:HASEN ALI
MEMBER BOARD OF DIRECTORS OF TENGAGURI SS LTD S/O LT. SAYED
ALI VILL. MOHOMARI PATHER P.O TENGAGURI P.S LAHARIGHAT DIST.
MORIGAON ASSAM PIN 782127
11:JAIDUR RAHMAN
MEMBER BOARD OF DIRECTORS OF TENGAGURI SS LTD S/O LT. ABDUL
JUBBAR VILL. FOLIHAMARI PATHER P.O. FOLIHAMARI PATHER P.S
BHURAGAON DIST. MORIGAON ASSAM PIN 782127
12:SHOHIDUL ISLAM
S/O MATABUDDIN VILL. TULSHIBORI P.O. TENGAGURI P.S BHELOWGURI
DIST. MORIGAON ASSAM PIN 78212
Advocate for the Petitioner : MR. M K HUSSAIN
Advocate for the Respondent : SC, CO OP
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 10.11.2023 Heard Mr. T.J. Mahanta, learned Senior Counsel assisted by Mr. N. Zaman, learned counsel for the petitioner; Mr. G. Bordoloi, learned Standing Counsel, Cooperation Department for the respondent nos. 1, 2, 5, 7 & 8. Also heard Mr. P.J. Saikia, learned Senior Counsel assisted by Mr. K. Baruah, learned counsel for the respondent nos. 10 & 11; and Mr. J.M.A. Choudhury, learned counsel for the respondent no. 12.
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2. The writ petition has been preferred assailing an Order dated 03.11.2023 [Annexure-I] passed by the respondent no. 2, that is, the Registrar of Cooperative Societies, Assam. The said Order dated 03.11.2023 has been passed in proceedings initiated on the basis of a number of complaints including two complaints, dated 05.09.2023 & dated 13.09.2023, submitted by the respondent nos. 10 - 12 alleging inter alia commission of illegalities/irregularities in the Annual General Meeting [AGM]/Election of a registered cooperative society viz. M/s Tengaguri S.S. Ltd. It has been projected that the AGM/Election to the Board of Directors of the Cooperative Society, M/s Tengaguri S.S. Ltd. ['the Society', for short] was held on 27.08.2023 and the results of election to the Board of Directors of the Society were declared on 29.08.2023. As per the results declared on 29.08.2023, the petitioner as well as the respondent nos. 10 & 12 got elected to the Board of Directors of the Society. Declaration of results to the Board of Directors of the Society was followed by the said two complaints, dated 05.09.2023 & dated 13.09.2023, alleging inter alia that the petitioner should have been declared disqualified for contesting the Election of the Society as he did not attend the meetings of the Board of Directors of the Society for the requisite number of times during the previous 5 [five] years, as mandated in Section 40 of the Assam Cooperative Societies Act, 2007.
3. Mr. Mahanta, learned Senior Counsel appearing for the petitioner has submitted that the allegations leveled in the complaints, submitted by the respondent nos. 10 - 12, as regards ineligibility on the part of the petitioner to contest the Election to the Board of Directors of the Society on the premise that the petitioner did not attend the meetings of the Board of Directors of the Society, as mandated by the provisions of Section 40[2] of the Assam Page No.# 4/7 Cooperative Societies Act, 2007, had been discarded by the respondent no. 2 in the Order dated 03.11.2023. On the other hand, the respondent no. 2 in the impugned Order, had proceeded to hold, firstly, that the petitioner did not take permission from the court to participate in the Election to the Board of Directors of the Society; and secondly, the petitioner had made false declaration.
4. Mr. Mahanta has submitted that in so far as the finding regarding making of false declaration is concerned, the said finding is perverse because the respondent no. 2 did not record any kind of reason before arriving at such finding. He has further submitted that there is no requirement for a shareholder to take any permission from the court to participate in the Election to the Board of Directors of the Society. He has further submitted that as per Rule 27 of the Assam Cooperative Societies Election Rules, 2019, any dispute relating to election of a cooperative society has to be submitted within 3 [three] days from the date of declaration of the results before the Election Authority. As the complaints submitted by the respondent nos. 10 - 12 herein were beyond the period of 3 [three] days, the respondent no. 2 could not have assumed jurisdiction to decide the election dispute. In support of his submission that the statutory period of limitation provided by the Assam Cooperative Societies Election Rules, 2019 cannot be extended either by the Election Authority or by the High Court in exercise of the power under Article 226 of the Constitution of India, he has relied on a decision of the Hon'ble Supreme Court of India in Reji Thomas and others vs. State of Kerala and others, reported in [2018] 16 SCC
778.
5. On the other hand, Mr. Saikia, learned Senior Counsel appearing for the respondent nos. 10 & 11 has submitted that the point of limitation was not taken by the petitioner in the proceeding before the respondent no. 2 prior to Page No.# 5/7 conclusion of the hearing on 26.10.2023 and as such, the petitioner has waived his right to raise the point of limitation as he has submitted to the jurisdiction of the respondent no. 2 in the proceedings initiated on the basis of the complaints submitted by the respondent nos. 10 & 11.
6. I have heard the learned counsel for the parties at some length. The issues raised in the writ petition would require further examination.
7. Issue notice, returnable on 08.12.2023.
8. As Mr. Bordoloi, learned Standing Counsel, Cooperation Department has appeared and accepted notice on behalf of the respondent nos. 1, 2, 5, 7 & 8; Mr. Saikia, learned Senior Counsel has appeared and accepted notice on behalf of the respondent nos. 10 & 11 and Mr. Choudhury, learned counsel has appeared and accepted notice on behalf of the respondent no. 12, no formal notices need to be issued to the said respondents. Mr. Zaman, learned counsel for the petitioner shall, however, furnish requisite nos. of extra copies of the writ petition along with annexures, to Mr. Bordoloi, Mr. Saikia and Mr. Choudhury within 2 [two] working days from today.
9. The petitioner shall take steps for service of notice upon the respondent nos. 3, 4, 6 & 9 by registered post with A/D within 2 [two] working days from today.
10. The learned counsel for the parties are also heard on the interim prayer.
11. In so far as the issue regarding ineligibility on the part of the petitioner to submit nomination and to contest the Election to the Board of Directors of the Society is concerned, the respondent no. 2 had, in the Order dated 03.11.2023, dealt with the issue and had observed that the petitioner was not disqualified under the provisions of Section 40[2] of the Assam Cooperative Societies Act, Page No.# 6/7 2007. Prima facie this Court is of the view that there is no requirement for a shareholder of a registered cooperative society to take any permission from any court to participate in the Election to the Board of Directors of a registered Cooperative Society. Prima facie, the other observation that the petitioner had made false declaration also appears to be perverse as the respondent no. 2 had not assigned any reason as to what manner the petitioner had made any false declaration. Though Mr. Saikia has referred to the prescribed Nomination Form [Form no. 1] to the Election of the Board of Directors of a Co-operative Society, he has not referred to the nomination form of the petitioner to enable the Court to reach any prima facie view as regards any false declaration made by the petitioner in his nomination form. The issue is to be left open for consideration on a subsequent date.
12. Mr. Saikia by referring to Section 128 of the Assam Cooperative Societies Act, 2007, has submitted that the Registrar of Cooperative Societies, Assam has the power and authority to condone the period of delay. On the other hand, the decision in Reji Thomas and others [supra] rendered on the legal question as to whether the High Court in exercise of its power under Article 226 of the Constitution of India can extend the statutory period of filing an election petition in terms of the provisions of Kerala Cooperative Societies Act, 1969. The decision in Reji Thomas and others [supra] has held that there was no provision in the Kerala Cooperative Societies Act, 1969 to condone the period of delay occurred in filing of an election petition raising any election dispute. The Hon'ble Supreme Court of India in Noharlal Verma vs. District Cooperative Central Bank Limited, Jagdalpur, reported on [2008] 14 SCC 445, by referring Section 55 of M.P. Cooperative Societies Act, 1960, has held that since Section 55 had allowed an aggrieved person to approach the Registrar within a period of 30 days and Page No.# 7/7 there was no provision analogous to Section 5 of the Limitation Act, 1963 allowing the Registrar to condone delay even if sufficient cause was shown, there is no authority and jurisdiction vested in the Registrar to condone any period of delay. In Noharlal Verma [supra], it has been observed that limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.
13. The Court is of the view that the petitioner has made out a prima facie case for interim relief and accordingly, it is ordered that till the returnable date, the impugned order dated 03.11.2023 [Annexure-I] shall remain stayed.
14. Mr. Bordoloi, learned Standing Counsel, Cooperation Department shall make the endeavour to produce the relevant records on the returnable date.
JUDGE Comparing Assistant