Jahir Uddin Laskar and 6 Ors v. The State of Assam and 8 Ors

ORDER

02.03.2023 Heard Shri S. Banik, learned counsel for the petitioners. Also heard Shri SK Talukdar, learned Standing Counsel, Cooperation Department.

¶2Further a Caveat has been filed on the subject by 10 incumbents who however are not parties in this writ petition. Shri Banik, learned counsel for the petitioners submits that there is no grievance against the incumbents filing the Caveat as they are not affected parties in the present dispute. Be that as it may, Shri MJ Quadir, learned counsel representing the said incumbents would be heard.

¶3The grievance of the petitioners is with regard to an order dated 23.02.2023 passed by the Registrar of Cooperative Societies, Khanapara. By the said order, the Registrar was considering an application dated 20.02.2023 submitted by 15 numbers of share holders of the Mohanpur Sambai Samiti Ltd. along with a letter issued by the Page No.# 4/5 MLA of No. 8 Algapur Constituency. The grievance of those incumbents was cancellation of their nomination papers for the ensuing election. The Registrar of Cooperative Societies while considering the said grievance had also made an observation that till such grievance could be fully redressed, the elections which were scheduled was required to be postponed. It is this part of the impugned order dated

23.02.2023 by which the present petitioners are aggrieved.

¶4Shri Banik, learned counsel for the petitioners, who are seven in numbers submits that in the scrutiny when it is normal that nomination of certain candidates would be rejected and that by itself would not be a cause for deferment or postponement of an election. The petitioners, who are the incumbents whose nominations were found to be valid, have prayed for holding the elections in time and adjudication of the dispute raised by incumbents whose nominations have been cancelled cannot stand in the way of timely elections.

¶5In this regard, Shri Banik, learned counsel for the petitioners has referred to Rule 27 of the Assam Cooperative Societies Elections Rules, 2019 (hereinafter called the Rules of 2019) which lays down that the dispute redressal mechanism as per which any dispute relating to election of a Cooperative Society may be submitted within 3(three) days from the date of declaration of the results, before the Election Authority and the Election Authority, shall make an enquiry upon the dispute on the basis of the relevant records and pass necessary orders. The principle of non-interference with election of any kind can be borrowed from Article 329(b) of the Constitution of India which lays down an embargo upon Courts to interfere with any election process of the Parliament or the Assembly as such challenge can only be made by an election petition after the election are over.

¶6Shri SK Talukdar, learned Standing Counsel, Cooperation Department was directed to obtain instructions vide an order dated 27.02.2023. The learned Standing Counsel submits that while passing the impugned order, there was some confusion Page No.# 5/5 leading to the observation of postponement of the election which he fairly submits that the same may not be in consonance with the prescription of law. He has also produced a written instruction dated 27.02.2023 issued by the Registrar of Cooperative Societies, Khanpara whereby the stand of the Registrar explaining the situation has put on record.

¶7Shri MJ Quadir, learned counsel, who had filed the Caveat, has submitted that if the elections are held before the redressal of the disputes raised by them regarding cancellation of their nominations, prejudice would be caused to them.

¶8The aforesaid submission is not sustainable in law in terms of the clear stipulation of the statute holding the fields, more specifically, Rule 27 of the Rules of 2019. Further, the said incumbents have not filed any independent writ petition on the issue and therefore as respondents, they are not entitled to make an independent prayer, that too, contrary to the relief prayed in this writ petition.

¶9In view of the aforesaid discussion, the instant writ petition stands allowed by setting aside the observation of the impugned order dated 23.02.2023 regarding deferment of the election of Mohanpur Samabay Samity Limited in the district of Hailakandi. In other words, it is directed that the elections / AGM be held without any further delay.

¶10A copy of the communication dated 27.02.2023 is made a part of the records. JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010044162023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1116/2023o JAHIRoUDDINoLASKARoANDo6oORS.o SONoOFoLATEoABDULoREZAKoLASKAR,o RESIDENToOFoVILLAGEoALGAPURoPART-III,o DISTRICT-oHAILAKANDI,oASSAM. 2:oANWARoUDDINoLASKAR oSONoOFoLATEoSURMAANoALIoLASKARo RESIDENToOFoVILLAGE-oALGAPURoPART-IIIo oDIST.-oHAILAKANDI oASSAM. 3:oHILALoUDDINoBARBHUIYA oSONoOFoLATEoNIMAARoALIoBARBHUIYAo RESIDENToOFoVILLAGE-oMOHANPURoPART-IIIo oDIST.-oHAILAKANDI oASSAM. 4:oLUTFURoRAHMANoBARBHUIYA oS/O-oALAUDDINoBARBHUIYAo RESIDENToOFoVILLAGE-oMOHANPURoPART-IIIo oDIST.-oHAILAKANDI oASSAM. 5:oTAJoUDDINoBARBHUIYA oSONoOFoLATEoKUTUBoALIoBARBHUIYAo RESIDENToOFoVILLAGE-oMOHANPURoPART-IIIo oDIST.-oHAILAKANDI oASSAM. 6:oDILWARoHUSSAINoBARBHUIYA oS/O-oLATEoMOINoUDDINoBARBHUIYAo PageoNo.#o2/5 RESIDENToOFoVILLAGE-oMOHANPURoPART-IIIo oDIST.-oHAILAKANDI oASSAM. 7:oNAZMULoHUSSAINoMAZUMDER oS/O-oJALALoUDDINoMAZUMDERo RESIDENToOFoVILLAGE-oMOHANPURoPART-VIo oDIST.-oHAILAKANDI oASSAMo VERSUSo THEoSTATEoOFoASSAMoANDo8oORS.o REPRESENTEDoBYoTHEoADDITIONALoCHIEFoSECRETARYoTOoTHEoGOVT.o OFoASSAM,o CO-OPERATIONoDEPARTMENT,o DISPUR,oGUWAHATI-o781006. 2:THEoSECRETARYoTOoTHEoGOVT.oOFoASSAM oCO-OPERATIONoDEPARTMENT oDISPUR oGUWAHATI-o781006. 3:THEoDEPUTYoCOMMISSIONER oHAILAKANDI oASSAM. 4:THEoREGISTRARoOFoCO-OPERATIVEoSOCIETIES oASSAM oKHANAPARA oGUWAHATI-o22o. 5:THEoZONALoJOINToREGISTRARoOFoCO-OPERATIVEoSOCIETIES oHAILAKANDI oASSAM. 6:THEoASSISTANToREGISTRARoOFoCO-OPERATIVEoSOCIETIES oHAILAKANDI oASSAM. 7:THEoDISTRICToDEPUTYoREGISTRARoOFoCO-OPERATIVEoSOCIETIES oHAILAKANDI oASSAM. 8:THEoRETURNINGoOFFICER oASoPERoORDERoBEARINGoMEMOoNO.oCCHF.12/73/PT.VI/311oDATEDo Page No.# 3/5 30.01.2023 I.E. NURUL HASAN MOZUMDER SENIOR INSPECTOR/ AUDITOR OF COOPERATIVE SOCIETIES ASSAM. 9:THE ASSISTANT RETURNING OFFICER AS PER ORDER BEARING MEMO NO. CCHF.12/73/PT.VI/311 DATED 30.1.2023 I.E. SUHRAB KHALED MOZUMDER SENIOR INSPECTOR/ AUDITOR OF CO-OPERATIVE SOCIETIES ASSAM Advocate for the Petitioner : MR. S BANIK Advocate for the Respondent : SC, CO OP BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI