Gauhati High Court
Akaddas Ali vs State Of Assam & 6 Ors on 12 March, 2014
Author: A.K. Goswami
Bench: A.K. Goswami
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO. 51/2014
Md. Akaddas Ali
S/O - Late Sorafat Ali
R/O - Vill - Nilbagan, P.O. Nilbagan,
P.S. - Murajhar,
Dist - Nagaon, Assam.
.........APPELLANT
- Versus -
1. The State of Assam,
Represented by Commissioner and Secretary
to the Government of Assam,
Co-operative Societies Department,
Dispur, Guwahati - 781006.
2. The Registrar of Co-operative Societies,
Guwahati Zone,
Bhangagarh, Guwahati - 05.
3. The Zonal Joint Registrar of Co-operative Societies,
Assam, Khanapara,
Guwahati - 22.
4. The District Deputy Registrar of Co-operative Societies,
Nagaon.
5. The Secretary,
Nilbagan Samabai Samity Ltd.,
Nilbagan, P.O. Nilbagan,
P.S. Murajhar,
Dist - Nagaon (Assam),
PIN - 782 445.
6. Shri P.K. Das
Assistant Registrar of Co-operative Societies,
Hojai, P.S. Hojai,
Dist - Nagaon (Assam).
7. Md. Nur Islam,
S/O - Late Abdul Khalique,
R/O - Village - Mubarak Basti,
P.O. - Nilbagan, P.S. Murajhar,
Dist - Nagaon (Assam),
PIN - 782 445.
........ RESPONDENTS
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BEFORE
HON'BLE CHIEF JUSTICE A.M. SAPRE
HON'BLE MR. JUSTICE A.K. GOSWAMI
For the Appellant : Mr. H.R.A. Choudhury, Senior Advocate.
Md. Giash Uddin, Advocate.
Ms. M. Buragohain, Advocate.
For the Respondent Nos. 1 to 6 : Dr. B. Ahmed, Standing Counsel,
Co-operation Department.
For the Respondent No. 7 : Mr. A.D. Choudhury, Advocate.
Date of hearing and judgment : 12.03.2014
JUDGMENT AND ORDER
[A.K. GOSWAMI, J]
This intra-court appeal filed by the petitioner of W.P.(C) No. 7449/2013 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 19.12.2013, passed by the learned Single Judge, in the aforementioned writ petition.
2. We have heard Mr. H.R.A. Choudhury, learned Senior Counsel for the writ appellant, Dr. B. Ahmed, learned Standing counsel, Co-operation Department appearing for respondent Nos. 1 to 6 and Mr. A.D. Choudhury, learned counsel appearing for respondent No. 7.
3. The respondent No. 7, as a writ petitioner, instituted a writ proceeding numbered and registered as W.P.(C) No. 6350/2013 challenging his removal as the Chairman of Nilbagan Samabai Samity Ltd., for short, Society, which is a co- operative society registered under the Assam Co-operative Societies Act, 1949, for short, the Act, pursuant to a resolution of the Executive Committee of the Society dated 18.09.2013. The present appellant, who, at the relevant point of time was the Vice-Chairman of the Society, was arrayed as respondent No. 5 in the said writ proceeding.
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4. Upon hearing the counsel for the writ petitioner, learned Standing counsel, Co-operation Department and the respondent No. 5 in the aforesaid W.P.(C) No. 6350/2013, a learned Single Judge of this Court, by an order dated 01.11.2013, while issuing notice returnable in six weeks and posting the case on 16.12.2013, directed that status-quo as on that date regarding holding of the office of the Chairman of the Society be maintained till the next date.
5. It is relevant to note that submission was advanced on behalf of the respondent No. 5 in the said case that he was functioning as Chairman.
6. While the aforesaid writ petition was pending adjudication, the Assistant Registrar of Co-operative Societies, Hojai passed an order dated 28.11.2013, opining that the writ petitioner in W.P.(C) No. 6350/2013, that is, Md. Nurul Islam was working as Chairman and thus he was allowed to continue as Chairman of the Society subject to final judgment in W.P.(C) No. 6350/2013.
7. This order dated 28.11.2013 of the Assistant Registrar of Co-operative Societies, Hojai, as noted above, was put to challenge in W.P.(C) No. 7449/2013 by the present writ appellant. The writ petition was dismissed by the learned Single Judge by an order dated 19.12.2013 and the said order dated 19.12.2013 and the order dated 28.11.2013, passed by the Assistant Registrar of Co- operative Societies, Hojai are the subject matters of this appeal.
8. Mr. H.R.A. Choudhury, learned Senior Counsel for the appellant has submitted that during the pendency of W.P.(C) No. 6350/2013, the Assistant Registrar of Co-operative Societies, Hojai had no jurisdiction and/or authority to adjudicate on an issue, which is the subject matter of the writ petition. There was no occasion for him to have taken it upon himself to interpret the order of this Court and learned Single Judge failed to consider this aspect of the matter and on the contrary, placed reliance on the said order while dismissing the writ petition.
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9. Mr. A.D. Choudhury, learned counsel for respondent No. 7 in this writ appeal, supports the impugned orders. He has submitted that the writ appellant was charge-sheeted in G.R. Case No. 1031/1998 under Sections 341/323/379/ 34 I.P.C. and as such, learned Single Judge had considered him to be an undesirable person to be the Chairman of the Society.
10. Dr. B. Ahmed, learned Standing counsel, Co-operation Department has submitted that the Writ Court did not go into the question as to whether the Assistant Registrar of Co-operative Societies, Hojai could have passed the order dated 28.11.2013 while the writ petition was pending.
11. Perusal of the order dated 19.12.2013 would go to show that learned Single Judge had approved the finding of fact recorded by the Assistant Registrar of Co-operative Societies, Hojai in his order dated 28.11.2013 to the effect that respondent No. 7 was continuing as the Chairman of the Society. Learned Single Judge had also taken the view that because of the appellant being charge- sheeted in a criminal case under Section 379 I.P.C., it was not desirable that such a person should be allowed to be at the helm of affairs of the Society.
12. Dr. Ahmed is right in submitting that the learned Single Judge did not advert to the question as to whether the Assistant Registrar of Co-operative Societies, Hojai could have taken up an issue which is directly arising out of a pending writ petition. Though in the writ petition, such contentions were raised and it is also stated in the memo of appeal that such a submission was advanced, the order does not reflect that such an argument was raised before the learned Single Judge.
13. Be that as it may, it raises a very fundamental legal question and even if we take it that such an issue was not argued before the learned Single Judge, the appellate Court can certainly consider and examine such a question.
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14. A perusal of the order of the Assistant Registrar of Co-operative Societies, Hojai would go to show that he had not only recorded the finding, without being called upon by this Court to do so, that the respondent No. 7 was working as Chairman and thereby allowing him to continue as Chairman of the Society, but also had denounced the charges raised by the Members in the meeting dated 18.09.2013, on which date the respondent No. 7 was removed as Chairman by way of no confidence motion, which was directly under challenge at the instance of the respondent No. 7 herein in W.P.(C) No. 6350/2013, as baseless. 15 When the Court is in seisin of a matter, an administrative authority cannot start a parallel proceeding on the very same subject matter at its own ipse dixit and record a finding on the issues. If such an action is taken, the same will amount to directly interfering with the dispensation of justice by the Courts of law. We have no hesitation to hold that the Assistant Registrar of Co-operative Societies, Hojai clearly transgressed his authority in venturing into dabble in a matter which is sub-judice before this Court. Clearly, this is an instance of an authority trying to over-reach the orders of this Court. The order dated 28.11.2013 being patently illegal and without jurisdiction, findings recorded in the said order are of no consequence.
16. The cause of action for filing the writ petition by the present appellant was the unwarranted and uncalled for order of the Assistant Registrar of Co-operative Societies, Hojai. In the previously instituted W.P.(C) No. 6350/2013, there is already an order of status-quo dated 01.11.2013 with regard to holding of the office of the Chairman of the Society. We are given to understand that the order dated 01.11.2013 is still holding the field. So long as the said order dated 01.11.2013 holds the field, we are of the considered opinion that, in the facts and circumstances of the case, desirability aspect, a factor which also weighed with the learned Single Judge while dismissing the writ petition, will not come into W.A. No. 51/2014 5|P a g e play. The matter could have been different if a charge-sheeted person is statutorily debarred from functioning as the Chairman of the Society.
17. In view of the discussions above, the order dated 28.11.2013 passed by the Assistant Registrar of Co-operative Societies, Hojai cannot be sustained in law and accordingly, the same is set aside and quashed. As a logical corollary, the order of the learned Single Judge dated 19.12.2013, which placed reliance on the said order dated 28.11.2013, is also set aside.
18. The writ appeal is allowed. No cost.
19. Before parting with the records, we, however, consider it appropriate to grant liberty to the parties to approach the learned Single Judge for clarification of the order dated 01.11.2013, if so advised.
JUDGE CHIEF JUSTICE P.K. SINHA W.A. No. 51/2014 6|P a g e