Gauhati High Court
The Co-Operative City Bank Ltd vs The State Of Assam And 3 Ors on 9 February, 2017
Author: A.M. Bujor Barua
Bench: A.M. Bujor Barua
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
WP(C) No.458 of 2016
The Co-operative City Bank
U.N. Bezbaruah Road
Silpukhuri,
Guwahati-781003,
Represented by its Managing Director.
............ Petitioner
- Versus -
1. The State of Assam
Represented by the Commissioner and Secretary
To the Govt. of Assam, Co-operative Department,
Dispur, Guwahati-6.
2. The Registrar of Co-operative Societies, Assam
Khanapara, Guwahati-22
3. The Assistant Registrar of Co-operative Societies
Bhangagarh, Guwahati, Assam.
4. The Joint Registrar of Co-operative Societies,
Guwahati Zone, Bhangagarh, Guwahati-5
Assam.
5. Sri Khanindra Goswami
S/o- Late Upen Goswami
Resident of Hatigarh Chariali
Zoo Narengi Road
P.S- Geetanagar, Guwahati-24
District- kamrup (M), Assam.
........ Respondents
BEFORE
HON'BLE MR. JUSTICE A.M. BUJOR BARUA
For the petitioner: Mr. K.N. Choudhury, Sr. Advocate
Mr. R. Dubey, Advocate
For the respondents: Mr. R. Chakraborty, Advocate
Dr. B. Ahmed, SC, Co-operation
WP(C) No.458 of 2016 Page 1 of 14
Date of Hearing : 09.02.2017.
Date of Judgment: 09.02.2017.
JUDGMENT & ORDER (ORAL)
Heard Mr. K.N. Chohudhury, learned senior counsel assisted by Mr. R. Dubey, for the petitioner, Mr. R. Chakraborty, learned counsel appearing for the respondent No.5 and Dr. B. Ahmed, learned Standing Counsel, Co- operation Department, Assam.
2. The Board of Directors of the City Co-operative Bank had taken a resolution dated 03.08.2015 deciding to hold the 34th Annual General Meeting of the Co-operative bank on 28.09.2015 and if adjourned, to be held on 29.09.2015. Accordingly, a notice was issued under the signature of the Managing Director of the Co-operative Bank, notifying that the 34th Annual General Meeting will be held on 28.09.2015, Monday at 3.00 p.m. in the premises of the bank at U.N. Bezbaruah Road, Silpukhuri. In the notice, it was also provided that if the meeting is adjourned, it shall be held on 29.09.2015, Tuesday at the same time and place to transact the same agenda. The aforesaid notice to hold the Annual General Meeting on 28.09.2015 was duly published through a notice, which was published in the Assam Tribune news paper, which is a widely circulated local English daily.
3. On 24.09.2015, the Board of Directors of the Co-operative Bank adopted a resolution No.3, whereby the 34th Annual General Meeting, which was scheduled to be held on 28.09.2015, was postponed due to some unavoidable reasons and accordingly proposed to be held on 29.09.2015 at the same venue and same time to transact the same agenda as given in the WP(C) No.458 of 2016 Page 2 of 14 earlier notice dated 11.09.2015. It has also been taken note of that by the order dated 21.09.2015 of the Assistant Registrar of Co-operative Societies, Guwahati, an observer, namely, Sri Tapan Das Senior/Junior Inspector of the Office of the Assistant Registrar was appointed as an observer of the said meeting to be held on 29.09.2015.
4. It is an admitted position of the parties that the meeting scheduled to be held on 29.09.2015, could not be held due to lack of quorum and accordingly the Annual General Meeting was deferred till 06.10.2015. To that effect, there is a report by the observer Senior Inspector that as the quorum was not formed within one hour of the time fixed for the Annual General Meeting, the meeting had been adjourned till 06.10.2015 to transact the same agenda. The said report of the Senior Inspector observer finds place at Annexure-12 page 48 of the writ petition. Accordingly, the Annual General Meeting of the Guwahati City Co-operative Bank was held on 06.10.2015 and certain resolutions were taken in the said meeting.
5. By the letter dated 17.10.2015, the Assistant Registrar of Co-operative Societies had informed the Registrar of Co-operative Societies that the Annual General Meeting of the City Co-operative Bank Limited was held on 06.10.2015 and accordingly, the society had submitted the proceedings of the Annual General Meeting on 14.10.2015 for its approval. It is also stated that subsequently, a complaint was lodged before the Registrar with a copy to the Assistant Registrar by one Mrs. Bina Choudhury and two others against the procedure adopted in the Annual General Meeting conducted by the society. Accordingly, the Assistant Registrar requested the Registrar to kindly suggest WP(C) No.458 of 2016 Page 3 of 14 as to whether the proceedings of the Annual General Meeting can be approved or not.
6. Thereafter, the Assistant Registrar of Co-operative Societies by his order dated 19.01.2016 comes to a conclusion that as per the Clause No.22(1) of the Byelaws of the Co-operative Bank, 15 days notice, ahead of the Annual General Meeting, must be issued to the share holders. As per the finding of the Assistant Registrar the Board of Directors did not issue clear 15(fifteen) days notice ahead of the deferred Annual General Meeting and accordingly concluded that this had violated Clause-22(1) of the Byelaws of Co-Operative Society Bank. Accordingly, by the said order, the Assistant Registrar disapproved the proceeding of the Annual General Meeting held on 06.10.2015.
7. The said impugned order dated 19.01.2016 of the Assistant Registrar is under challenge in this writ petition. Mr. K.N. Choudhury, learned senior counsel appearing for the petitioner contends that the reason stated in the impugned order of 19.01.2016 is not sustainable inasmuch as, u/s 45 of the Assam Co-operative Societies Act, 2007(in short Act of 2007), the Registrar is required to give his approval on the resolutions within 15(fifteen) days of receipt of the proceedings and if no approval is given within the aforesaid period of 15(fifteen) days, by operation of law, the proceedings shall be deemed to have been approved. It is stated that the proceedings of the meeting was held on 06.10.2015 and the same was forwarded to the Assistant Registrar of Co-operative Societies on 14.10.2015 and as such on the expiry of the 15th day from 14.10.2015, the resolution stood deemed to have been approved.
WP(C) No.458 of 2016 Page 4 of 14
8. It is stated by Dr. B. Ahmed, learned counsel for the respondent Registrar that the power to approve u/s 45 of the Act, has been delegated by the Registrar to the Assistant Registrar in the given cases. Accordingly, the provisions of Section 45 of the Act that the Registrar shall give its approval of the resolution within 15(fifteen) days of receipt of the proceeding has to be read in the circumstances to be that the Assistant Registrar shall give its approval of the resolution within 15(fifteen) days of receipt of the proceedings.
9. The 15th day from 14.10.2015 having expired on 29.10.2015, it is deemed that on and from 29.10.2015, the resolution of 06.10.2015 by operation of law, stood deemed to have been approved by the Assistant Registrar.
10. On the other hand, Mr. R. Chakraborty, learned counsel for the respondent No.5 had submitted that the aforesaid provisions of deemed approval is applicable only in respect of such Annual General Meeting, which had been held within the prescribed statutory period of 06(six) months from the last date of the earlier financial year. It is the submission of the learned counsel for the respondent No.5 that the last date of the earlier financial year expired on 31.03.2015 and therefore, by taking into consideration the period of 06(six) months, the said period had expired on 30.09.2015. It is the submission of the learned counsel that as the meeting was held on 06.10.2015 and not within 30.09.2015, therefore, the deeming provisions of Section 45 of the Act would not be applicable. It is the further submission of the learned counsel for the respondent No.5 that as the Annual General Meeting was not held within 30.09.2015, therefore, by operation of Section 39 WP(C) No.458 of 2016 Page 5 of 14 of the Act, the Board of Directors got automatically dissolved and it is for the authorities in the office of the Registrar of Co-Operative Societies to appoint an appropriate person to manage the affairs of the Co-operative Society.
11. To the aforesaid submission of the learned counsel for the respondent No.5, the learned senior counsel appearing for the petitioner refers to a Judgment of the Division Bench of this Court in M d. Abdul Hussain -vs- State of Assam , reported in (1990) 1 GLJ 337 , wherein in paragraph-7, it had been held that an adjourned meeting does not come within the mischief of the provision of Section 32 of the Act for not holding the Annual General Meeting within the period of 60 days from expiry of the co-operative year. It is pointed out that the aforesaid decision of the Division Bench of this Court pertains to Section 32 of the earlier Co-operative Societies Act, 1949(in short Act of 1949). Accordingly, it is submitted that the provisions of Section 32 of the earlier Act of 1949 and the provisions of Section 39 of the present Act of 2007 are pari-materia in nature and purpose and purport of both the Sections are one and the same. As such, it is submitted that the aforesaid law laid down by the Division Bench would also be applicable in respect of a case u/s 39 of the Act of 2007. The learned counsel for the respondent No.5, on the other hand submits that there is a substantial difference between Section 32 of the Act of 1949 and Section 39 of the Act of 2007. The learned counsel submits that under Section 32 of the Act of 1949, the Annual General Meeting has to be held within 60(sixty) days, which can be extended by another 30(thirty) days, whereas under Section 39 of the Act of 2007, there is no such provision for extension.
WP(C) No.458 of 2016 Page 6 of 14
12. I have considered the rival submissions put forward by the learned senior counsel for the petitioner as well as the learned counsel for the respondent No.5. The issue for determination of this Court in the present writ petition is as to whether the deferred Annual General Meeting of the City Co- operative Bank Limited held on 06.10.2015 is vitiated, whether it violates Clause No.22(1) of the Byelaws of the Co-operative Bank and as to whether the inaction of the Assistant Registrar in having not approved or disapproved the resolutions of the meeting within the period of 15(fifteen) days from the receipt of the proceeding, is to be construed to be a deemed approval under operation of law.
13. As regards the reasons stated in the impugned order dated 19.01.2016 that the Board having not notified by a 15(fifteen) days advance notice regarding the deferred meeting held on 06.10.2015, whether the same by itself constitutes a violation of Clause No.22(1) of the Byelaws of the Co- operative Bank. Clause 22(1) of the Byelaws of the Co-operative City Bank, inter-alia, provides that the notice of the Annual General Meeting together with the agenda of the meeting, audited statement etc are required to be sent to the registered address of each share holder member at least 15(fifteen) days prior to the date of the meeting. The expression 'date of the meeting' is understood to be the date which is fixed by the Board of Directors of the Bank through its appropriate resolution by providing as to on which date the meeting is to be held.
14. In the instant case, by appropriate notice published in the newspaper dated 11.09.2015, the share holders of the City Co-operative Bank had been duly informed that the Annual General Meeting of the Co-operative Bank will WP(C) No.458 of 2016 Page 7 of 14 be held on 28.09.2015 or in the event of any adjournment on the said date, to be held on 29.09.2015. Subsequently, by a circular dated 24.09.2015, the share holders had been duly informed that the meeting will be held on 29.09.2015. In view of such notices being duly issued by the Board of Directors, this Court accepts that the notice as required under Clause 22(1) of the Bylaws of the Co Operative Bank Limited had been duly complied with.
15. What happened on 29.09.2015 was that a meeting was duly convened and all arrangements had been made for holding the same. But because of some inexplicable reason, the quorum for the meeting was not available on the said day and accordingly the observer, who was appointed to oversee the meeting, had duly conveyed that the meeting will be deferred to 06.10.2015.
16. The concept of a deferred meeting and the concept of holding the meeting are not one and the same and there is a distinction between the two. The purpose of the notice is that all the share holders must come to know as to when the meeting will be held so that it can facilitate their participation in the meeting. On the other hand, a deferred meeting is a continuation of the earlier meeting, which was notified but could not be held. If, on the contrary, it is accepted that even for an adjourned/deferred meeting, the notice under Clause 22(1) of the Byelaws is required to be given, in that event, the entire process has to be re-done once again i.e. meaning thereby that the Board of Directors would be required to resolve as to when the meeting will take place, thereafter the notices under Clause 22(1) of the Byelaw would be issued and thereafter the meeting will be held. If such steps are required to be taken, the said meeting will no longer be a deferred meeting but would be a new meeting of its own, having its own consequences.
WP(C) No.458 of 2016 Page 8 of 14
17. In such view of the matter, this Court is of the view that for a deferred meeting, which was already duly convened through a resolution and also duly notified, no further notices under Clause 22(1) of the Byelaws is required.
18. As regards the other submission of the learned counsel for the respondent No.5 that there is a difference between the provisions of Section 32 of the 1949 Act and Section 39 of the 2007 Act and because of such differences, the law laid down by the Division Bench of this Court with respect to Section 32 of the 1949 Act would not be applicable, the learned counsel on being asked to elucidate the difference, had pointed out that Section 32 of the 1949 Act provides for a provision of extension of 30 days, whereas Section 39 of the 2007 Act does not provide for any such provisions for extension and therefore, there is a substantial difference between the provisions of the two sections and as such, the law laid down by the Division Bench of this Court in respect of Section 32 of the 1949 Act is not applicable in respect of Section 39 of the new Act.
19. On a perusal of the provisions of the two sections, it is seen that in the earlier Act of 1949, the period for holding the meeting since the expiry of the last financial year is 60 days and on an appropriate application, the same can be extended to 90 days, meaning thereby that in any circumstances, the outer limit is 90 days. On the other hand, Section 39 of the 2007 Act provides for a period of 06(six) months, that is near about 180 days, which period by itself is sufficiently more than the period of 60 days as provided by the earlier Act and that perhaps can be a reason why the Legislature did not find it necessary to provide for any further extension of the said period. Be that as it may, the ultimate consequence of both the sections is that under Section 32 WP(C) No.458 of 2016 Page 9 of 14 of the earlier Act of 1949, the outer limit was 90 days and in the subsequent Act of 2007, as per Section 39, the outer limit is 180 days. But, at the same time, the purpose of both sections 32 of the 1949 Act and Section 39 of the 2007 Act is one and the same. The purpose of both the sections is that if within the given outer limit, the Annual General Meeting is not held by the existing Board, the Board would cease to exist. Accordingly, the dominant purpose of both Section 32 of the Act of 1949 and Section 39 of the Act of 2007 is that if the meeting is not held within the prescribed outer limit, the Board will cease to have its existence and the purpose is not that one of the Sections being 32 of the 1949 Act provides for a provision for extension and the other being Section 39 of the 2007 Act also does not provide for a provision for extension.
20. The concept pari-materia as defined in Black's Dictionary is that it is of the same matter or on the same subject, and laws that are pari-materia must be construed with reference to each other.
21. In view of the above, the provisions of Section 32 of the Act of 1949 and that of Section 39 of the Act of 2007, which provides that in the event the Annual General Meeting is not held within the period prescribed under the respective two Sections, the Board of Directors, or the Managing Committee, as the case may be, of the concerned Co-operative Society automatically stands dissolved or it ceases to exist, are both pari-materia to each other.
22. Accordingly, the question that arises is whether the interpretation given by the High Court as regards Section 32 of the 1949 Act that an adjourned meeting does not come within the mischief of the provision of Section 32 of the 1949 Act for not holding the Annual General Meeting within WP(C) No.458 of 2016 Page 10 of 14 the prescribed period of 60 days, would also be applicable in respect of Section 39 of the 2007 Act, which also provides for the consequences of not holding the Annual General Meeting within the prescribed period of 06(six) months.
23. In this regard, reference may be made to the law laid down in Baras- vs- Aberdeen Steam Traw ling and Fishing Com pany Lim ited , reported in (1933) AC 402 , wherein in page 447, it is provided as follows:-
"For myself, I prefer the later form in which James L.J himself restated his rule in the case of Greaves v. Tofield (3) as follows: If an Act of Parliament uses the same language which was used in a former Act of Parliament referring to the same subject, and passed with the same purpose, and for the same object, the safe and well-known rule of construction is to assume that the Legislature when using well-known words upon which there have been well-known decisions uses those words in the sense which the decisions have attached to them."
24. Further reference may be made to the law laid down in the case of In re Cathoart , reported in (1870) 5 Ch APP 703 , which is as under:
"Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them. I consider, therefore, that the Legislature, in repeating these words in the Act of 1861, must be taken to have adopted the meaning put upon them by the Court of Queen's Bench."WP(C) No.458 of 2016 Page 11 of 14
25. From the aforesaid propositions of law, what is inferred is that in the event a superior Court gives an interpretation to the provisions and expressions of an earlier statute and the same provision or expression is adopted by the legislature in a subsequent statute, it is to be understood that the legislature while enacting the subsequent statute by incorporating the same provision or expression, had also adopted the same meaning to such provision and expression as given by the superior Court in the earlier statute.
26. In the instant case, the High Court having interpreted the provisions of Section 32 of the Act of 1949 to mean that the mischief of Section 32 of the 1949 Act to the effect of not holding the Annual General Meeting within the outer limit of the prescribed period would render the existing Managing Committee to be dissolved automatically would not be applicable in case of an adjourned meeting, would also be applicable in case of Section 39 of the Act of 2007. In other words, in the event, the adjourned meeting is held beyond the outer limit of the prescribed period, the same would not entail the consequence of the Board of Directors being dissolved/ceased to exist for not holding the Annual General Meeting within the prescribed period.
27. Accordingly, this Court is of the considered view that the initial meeting having been convened and fixed within the outer limits of the prescribed period of 06(six) months, but adjourned to a date, which is marginally beyond the period of 06(six) months, would not bring the same within the mischief of Section 39 of the Act of 2007, so as to render the Board of Director to have been dissolved/ceased to exist.
28. In such view of the matter, this Court is of the considered view that the law laid down by the Division Bench of this Court while interpreting WP(C) No.458 of 2016 Page 12 of 14 Section 32 of the 1949 Act to the effect that an adjourned meeting does not come within the mischief of the provisions of Section 32 of the 1949 Act for not holding the Annual General Meeting within the period of 60 days from the expiry of the co-operative year, is also equally applicable in respect of Section 39 of the Act of 2007. The purpose of laying down the law is that, as because an adjourned meeting is a consequence of not holding an earlier meeting, which was duly notified and convened, but for some other inexplicable reason, the same could not be held on the given date, the concept of a deferred meeting and that of an original meeting, are different. In view of such difference between originally convened meeting and a deferred meeting, the aforesaid provisions of law has been laid down by this Court. Such reasoning of a difference between the originally convened meeting and that of a deferred/adjourned meeting is also equally applicable in a case whether a meeting has been deferred/adjourned u/s 39 of the 2007 Act.
29. Accordingly, the considered view of this Court is that the law laid down by the Division Bench that the mischief of Section 32 of the 1949 Act is not applicable with regard to an adjourned meeting, is also equally applicable in respect of an adjourned meeting under Section 39 of the 2007 Act. Further, as already been held, as the mischief of Section 32 of the 1949 Act or Section 39 of the 2007 Act, as the case may be, is not applicable in respect of an adjourned meeting, the submission of the learned counsel for the respondent No.5 that the provisions of the deemed approval u/s 45 would not be applicable, is also not acceptable. Accordingly, it is held that the provisions of deemed approval provided u/s 45 of the 2007 Act is also applicable in the WP(C) No.458 of 2016 Page 13 of 14 case of a deferred meeting, which has been held beyond the statutory period of 06(six) months as provided u/s 39 of the 2007 Act.
30. In view of the aforesaid conclusions arrived at by this Court, the impugned order 19.01.2016 of the Assistant Registrar of Co-operative Societies is not sustainable and the reasoning given therein that no notice of clear 15 days ahead of the deferred meeting was given, which had violated Clause No.22(1) of the By Laws of the Co-operative Bank is also not acceptable.
31. Accordingly, the impugned order dated 19.01.2016 is declared null and void and the Registrar of Co-operative Societies is directed to pass appropriate orders keeping in mind the provisions of Section 45 of the Act of 2007 and as well as the observations made herein above.
In terms of the above, the writ petition stands disposed of.
JUDGE Alam WP(C) No.458 of 2016 Page 14 of 14