Dakshin Baguribari Samabay Samity Ltd. and 4 Ors v. The State of Assam and 5 Ors

ORDER Date : 13.06.2023

Heard Mr. S. Banik, learned counsel for the petitioners. Also heard Mr. S.K. Talukdar, learned standing counsel for the Cooperation Department, representing respondent nos.1, 2, 4, 5, and 6, and Mr. C.K.S. Baruah, learned Govt. Advocate for the respondent no.3.

¶2In brief, the case of the petitioners is that a new section 130 A was inserted in the Assam Cooperative Societies' Act, 2007 ('2007 Act' for short), which gave power to the State Govt. to exempt any registered cooperative society from the operation of the provision of section 39 and 41(2) of the Act for a period not exceeding 6 (six) months under exceptional circumstances like pandemic. The competent authority in exercise of power conferred under section 130 A of the 2007 Act issued a notification dated 27.01.2022, thereby granting exemption for a period from 01.10.2020 to 29.03.2021 to the societies whose names are mentioned in the said notification. The case of the petitioners is that by the time the notification was issued, the period of exemption has already been lapsed, for which the benefit could not be given to petitioners and that by operation of provisions of section 39 of the 2007 Act, there was a lapse on the part of the petitioners to hold the AGM within the time allowable under section 39 of the 2007 Act and that the petitioners also did not get the benefit under section 41(2) as during the said period, the elections of Board of Directors of the societies could not be held. In short, the benefit of the Page No.# 4/5 notification dated 27.01.2022 could not be availed by the petitioners. Hence, the learned counsel for the petitioners has submitted that insofar as the petitioner nos.1 and 2 is concerned, as the Board has lapsed after expiry of 5 years term, the same shall not be construed as a disqualification to the members of the Board of Directors of the petitioner nos.1 and 2 societies to participate in the election. It is also submitted that in respect of petitioner nos.3, 4 and 5, adequate time be granted to the Board of Directors to hold the AGM as the term/tenure of the Board has not yet lapsed.

¶3The learned standing counsel for the Cooperation Department has submitted that by operation of the provisions of section 31, as the term of the Board is prescribed to be 5 (five) cooperative years from the date of election of the Directors, for those societies where the election could not be held, the Board is already deemed to have lapsed by afflux of time and therefore, while it would be discretion of the Court to make the Directors eligible for re-election, such elections shall be conducted by the departmental officer under sub-section

(6) of section 41 of the 2007 Act. Insofar as the petitioner nos.3, 4, and 5 are concerned, it is submitted that it would be discretion of the Court to extend time to the said societies for holding the AGM as their 5 (five) cooperative years would commence from the date of earlier election, whenever the same were held.

¶4In view of the contents of the notification dated 27.01.2022, issued by the Additional Chief Secretary to the Govt. of Assam, Cooperation Department, the Court is inclined to observe that the intention of the Govt. was to exempt the societies from operation of section 39 and 41(2) of the 2007 Act. However, by the time the notification was issued, the exemption granted had Page No.# 5/5 already expired. Under such circumstances, the Court is inclined to provide that the non-holding of AGM and/or elections by the petitioner nos.1 and 2 societies, namely, (1) Dakshin Baguribari Samabay Samity Ltd., and (2) Paschim Sarukhetri Samabay Samity Ltd. shall not be construed to have disqualified the present Board of Directors to participate in the next elections. However, it is provided that the elections would be held by the authorities assigned by the Registrar of Cooperative Societies to hold such elections, which would be done departmentally within an outer period of 50 days from today, which is inclusive of 5 (five) days time to the petitioners to produce certified copies of this order before the competent authorities, giving them 45 days period of time to hold such election.

¶5Insofar as petitioner nos.3, 4 and 5 are concerned, namely, Baghmara Char Samabay Samity Ltd., Bausi Samabay Samity Ltd., and Paschim Mandia Samabay Samity Ltd., the Court is inclined to provide that within an extended period of within 30 (thirty) days from today, the said societies shall hold their AGM, if not already held, and the proceedings of the AGM shall be forwarded to the jurisdictional Assistant Registrar of Cooperative Societies for approval.

¶6To the extent as indicated above, the writ petition stands allowed.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010034552022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1323/2022o DAKSHINoBAGURIBARIoSAMABAYoSAMITYoLTD.oANDo4oORS.o REP.oBYoITSoPRESIDENToSHAHIDULoISLAM,oAGEDoABOUTo38oYEARS,oSONo OFoJULoHABEZoMULLAH,oVILL.-oKUCHUMARAoNC,oDIST.-oBARPETA,o ASSAM 2:oPASCHIMoSARUKHETRIoSAMABAYoSAMITYoLTD. oREP.oBYoITSoPRESIDENToABDULoMANNANoALI oAGEDoABOUTo46oYEARS oSONoOFoABDULoABEDoALI oVILL.-oBAISHA oP.O.oBHOGDIA oDIST.oBARPETA oASSAM 3:oBAGHMARAoCHARoSAMABAYoSAMITYoLTD. oREP.oBYoITSoPRESIDENToFAZALoHOQUEoCHOUDHURY oS/O-oKAZIMUDDIN oVILL.oANDoP.O.oBAGHMARAoCHAR oP.S.oALOPATIoCHAR oDIST.oBARPETA oASSAM 4:oBAUSIoSAMABAYoSAMITYoLTD. oREP.oBYoITSoPRESIDENToANOWARoHUSSAIN oAGEDoABOUTo47oYEARS oSONoOFoMUSARAFoHUSSAIN oVILL.-oHABIoRADHAoKUCHI oP.O.oRADHAoKUCHI oBARPETA Page No.# 2/5 ASSAM 5: PASCHIM MANDIA SAMABAY SAMITY LTD. REP. BY ITS CHAIRMANAYNAL HOQUE AGED ABOUT 44 YEARS SON OF LATE AKBAR ALI VILL. AND P.O. SATRAKANARA P.S. BAGHBAR DIST. BARPETA ASSA VERSUS THE STATE OF ASSAM AND 5 ORS REP. BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, COOPERATION DEPARTMENT, DISPUR, GUWAHATI-781006. 2:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM COOPERATION DEPARTMENT DISPUR GUWAHATI-781006. 3:THE DEPUTY COMMISSIONER BARPETA ASSAM 4:THE REGISTRAR OF COOPERATIVE SOCIETIES ASSAM KHANAPARA GUWAHATI-781022. 5:THE DISTRICT DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES BARPETA ASSAM 6:THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES BARPETA ASSA Advocate for the Petitioner : MR. S BANIK Advocate for the Respondent : SC, CO OP Page No.# 3/5 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA