Khairul Islam and 11 Ors v. The State of Assam and 14 Ors

ORDER Date : 10-10-2023

Heard Mr. S. Borthakur, learned counsel for the writ petitioners in W.P.(C) No. 5400-2023 and Mr. S. Hoque, learned counsel for the writ petitioner in W.P.(C) No. 5399-2023. Also heard Mr. S.K. Talukdar, learned standing counsel, Cooperation Department, Assam appearing for the official respondents. Mr. M.K. Hussain, learned counsel has appeared for the private respondents in both these proceedings. The order dated 01-09-2023 passed by the Registrar of Cooperative Societies permitting some of the private respondents, viz. respondent Nos. 7 to 15 in W.P.(C) No. 5400/2023 to participate in the AGM/ election of M/s Dhupaguri S.S. Ltd. held on 17-09-2023, has been put under challenge in both these writ petitions instituted by some of the Page No.# 13/15 share-holders of the Samity, who had also taken part in the election process, inter alia, on the ground that the impugned order is without jurisdiction. According to the writ petitioners, the private respondents, who had participated in the AGM/ election, are the members of the previous Board of the Samity whose term stood dissolved by operation of Section 39 of the Assam Cooperative Societies Act, 2007 and therefore, in view of the specific provision of Section 41(8) of the Act of 2007 read with Clause 23(Ka)(2) of the By-laws of the Society, they were not eligible to seek re-election. On such ground, Mr. Borthakur submits that this is a clear case of improper acceptance of nomination of the said respondents who were ineligible to participate in the AGM/ election under the law. The learned counsel for the petitioners have further argued that the writ petitioners were precluded from raising objection before the Returning Officer, as per the prescription of the statute, in view of the impugned order dated 01-09-2023 passed by the Registrar of Cooperative Societies permitting the private respondents to participate in the AGM/ election. The impugned order dated 01-09-2023 has also been assailed by the petitioners on the ground that the same is dehors the provision of law inasmuch as the Registrar of Cooperative Societies does not have any authority or power vested under the statute to pass such an order and that the impugned order has been passed on wholly irrelevant consideration. Responding to the above, Mr. S.K. Talukdar, learned standing counsel, Cooperation Department, Assam has argued that if the petitioners are aggrieved by the acceptance of the nominations filed by the private respondents then the remedy would lie in filing election petitions under Rule 27 of the Assam Cooperative Societies Election Rules, 2019 Page No.# 14/15 for setting aside their elections. Insofar as the exercise of powers by the Registrar of Cooperative Societies is concerned, Mr. Talukdar has placed reliance on a decision of the Division Bench rendered in the case of Jahurul Islam & Ors. Vs. Baktar Hussain & Ors. (W.A. No. 31/2019) to submit that by interpreting the provisions of Section 39 and 40(4)(a) of the Act of 2007, the Division Bench of this Court has held that responsibility of convening the meeting is upon the Secretary of the Samity and therefore, merely because the AGM was not convened within the statutory period, the Board cannot be held responsible. To that extent, submits Mr. Talukdar, the decision of the Registrar of Cooperative Societies in the facts and circumstances of the case, cannot be faulted in the eyes of law. The question as to whether the decision in the case of Jahurul Islam & Ors. (Supra) would be attracted to the facts and circumstances of the case, is a matter that would require deeper examination. However, since the AGM/ election of the Society has already been held, the election of the private respondents, if any, can be called into question by filing individual election petitions, that too if it turns out that any one or several of them have actually been elected. It is not in dispute that the election results are yet to be declared. As such, it is not known at this point of time as to whether any of the private respondents have at all been elected. Likewise, it is also not clear, if any of the writ petitioners who had participated in the election, has been elected. Under the circumstances, it would not be possible for this Court to pass a speculative order on the prayer made in the writ petitions. Situated thus, without expressing any further opinion on the merit of the claims Page No.# 15/15 and counter claims of the parties, the respondents are granted liberty to declare the results of the AGM/ election of the Society and thereafter, take appropriate steps in the matter, in accordance with law. The petitioners would also be at liberty to call into question, the election of any of the private respondents on the grounds of improper acceptance of their nomination papers, if so advised. If such election petition(s) is filed by the petitioners or any one of them, the same be decided on the merit of the case, without being influenced by the impugned order dated 01-09-2023 passed by the Registrar of the Cooperative Societies. Needless to mention herein that the period of limitation for filing the election petition shall be reckoned from the date of declaration of the election results. With the above observation, these writ petitions stands disposed of.

JUDGE GS Comparing Assistant

PageoNo.#o1/15 GAHC010208582023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5399/2023o JIAoUDDINoAHMEDo S/O-oMAINUDDIN,o VILL-oDHUPAGURI,o P.O-oDHUPAGURI,o DIST-oNAGAON,oASSAM,oPIN-782126 VERSUSo THEoSTATEoOFoASSAMoANDo18oORSo REPRESENTEDoBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVERNMENToOF ASSAM,oCOOPERATIONoDEPARTMENT,oDISPUR,oGUWAHATI-781006 2:THEoREGISTRARoOFoCO-OPERATIVEoSOCIETIES o oASSAMo oKHANAPARA oGUWAHATI-781022 3:THEoZONALoJOINToREGISTRARoOFoCO-OPERATIVEoSOCIETIES oGUWAHATIoZONE oBHANGAGARH oGUWAHATI-05 4:THEoASSISTANToREGISTRARoOFoCO-OPERATIVEoSOCIETIES oNAGAON oASSAM oPIN-782105 5:WAJIDAoKHATUN oW/O-oGULZARoHUSSAIN o R/O-oVILLAGEoBHERBHERI PageoNo.#o2/15 o P.O-oDHUPAGURI o P.S-oBATRADAWA o DIST-oNAGAON oASSAM oPIN-782123 6:MAINULoHOQUE oS/O-oLATEoAFTABoUDDINo o R/O-oVILLAGEoBHERBHERI o P.O-oDHUPAGURI o P.S-oBATRADAWA o DIST-oNAGAON oASSAM oPIN-782123 7:WAIZULoHOQUEoCHOWDHURY oS/O-oABDULoAJITo o R/O-oVILLAGEoDHUPAGURIoPATHARo o P.O-oDHUPAGURI o P.S-oDHING o DIST-oNAGAON oASSAM oPIN-782123 8:MOJIBURoRAHMAN oS/O-oKUDRAToALIo o R/O-oVILLAGEoDHUPAGURIoPATHERo o P.O-oDHUPAGURI o P.S-oDHING o DIST-oNAGAON oASSAM oPIN-782123 PageoNo.#o3/15 9:AJIJULoHOQUE oS/O-oLATEoUSMANoGONIo o R/O-oVILLAGEoDHUPAGURIoPATHERo o P.O-oDHUPAGURI o P.S-oDHING o DIST-oNAGAON oASSAM oPIN-782123 10:AJIJULoHOQUE oS/O-oMOHAMMADoALIo o R/O-oVILLAGEoDHUPAGURIo o P.O-oDHUPAGURI o o DIST-oNAGAON oASSAM oPIN-782123 11:SALEHAoKHATUN oS/O-oMOHAMMADoALIo o R/O-oVILLAGEoDHUPAGURIo o P.O-oDHUPAGURI o P.S-oDHING o DIST-oNAGAON oASSAM oPIN-782123 12:MUSLEMoUDDIN oS/O-oLATEoMOHAMMADoALIo o R/O-oVILLAGEoKADAMONIoPATHERo o P.O-oKADAMONI o P.S-oBATRADAVA o DIST-oNAGAON PageoNo.#o4/15 oASSAM oPIN-782123 13:AJIJULoHAQUE oS/O-oLATEoABDULoHUSSAINo o R/O-oVILLAGEoKADAMONIo o P.O-oKADAMONI o P.S-oBATRADAVA o DIST-oNAGAON oASSAM oPIN-782123 14:ALIoAKBAR oS/O-oAMIRoUDDINo o R/O-oVILLAGEoDHUPAGURIo o P.O-oDHUPAGURI o P.S-oBATRADAVA DIST-oNAGAON oASSAM oPIN-782123 15:ABULoKALAM oS/O-oLATEoSAMSUDDINo o R/O-oVILLAGEoBHERoBHERIo o P.O-oDHUPAGURI o DIST-oNAGAON oASSAM oPIN-782123 16:IKRAMULoHOQUE oS/O-oSAMSULoHOQUEo o R/O-oVILLAGEoDHUPAGURIoPATHER o P.O-oDHUPAGURI o DIST-oNAGAON Page No.# 5/15 ASSAM PIN-782123 17:ABUL KALAM S/O- LATE HAJI ABDUL WAHAB R/O- VILLAGE DHUPAGURI PATHER P.O- DHUPAGURI DIST- NAGAON ASSAM PIN-782123 18:SAIFUL ISLAM S/O- ABDUL MAZID R/O- VILLAGE DHUPAGURI PATHER P.O- DHUPAGURI DIST- NAGAON ASSAM PIN-782123 19:PRAFULLA BASHUMATARY S/O- SOWABER BASHUMATARY R/O- VILLAGE SAHARIA GAON P.O- SONARIGAON DIST- NAGAON ASSAM PIN-78212 Advocate for the Petitioner : MR D KALITA Advocate for the Respondent : SC, CO OP Linked Case : WP(C)/5400/2023 KHAIRUL ISLAM AND 11 ORS PageoNo.#o6/15 S/O-oSAFIRoUDDIN o R/O-oVILL-oKADAMONI o P.O.-oKADAMONI o P.S.-oBATADRABA o DISTRICT-oNAGAON oASSAM. 2:oHARUNoROSHID S/O-oSAMSULoHOQUE o R/O-oVILL.oDHUPAGURIoPATHER o P.O.-oDHUPAGURI o P.S.-oDHING o DISTRICT-oNAGAON oASSAM. o3:oFAIJUDDIN S/O-oMOIJUDDIN o R/O-oVILL.oDHUPAGURIoPATHER o P.O.-oDHUPAGURI o P.S.-oDHING o DISTRICT-oNAGAON oASSAM. o4:oNURJAMAN S/O-oABULoKALAM o R/O-oVILL.oDHUPAGURIoPATHER o P.O.-oDHUPAGURI o P.S.-oDHING o DISTRICT-oNAGAON oASSAM. o5:oSULEMAoKHATUN PageoNo.#o7/15 W/O-oSAIFULoISLAM o R/O-oVILL.oDHUPAGURIoPATHER o P.O.-oDHUPAGURI o P.S.-oDHING o DISTRICT-oNAGAON oASSAM. o6:oATABURoRAHMAN S/O-oMUSLEMoUDDIN o R/O-oVILL.oDHUPAGURIoPATHER o P.O.-oDHUPAGURI o P.S.-oDHING o DISTRICT-oNAGAON oASSAM. o7:oMOMTAJoALI C/O-oNURULoISLAM o R/O-oVILL.oDHUPAGURIo o P.O.-oDHUPAGURI o P.S.-oDHING o DISTRICT-oNAGAON oASSAM. o8:oMUBAROKoHUSSAIN S/O-oASRAFoUDDIN o R/O-oVILL.-oBHERBHERI o P.O.-oDHUPAGURI o P.S.-oBATADRABA o DISTRICT-oNAGAON oASSAM. o9:oMOMINoALI PageoNo.#o8/15 S/O-oNURULoISLAM o R/O-oVILL.-oBHERBHERI o P.O.-oDHUPAGURI o P.S.-oBATADRABA o DISTRICT-oNAGAON oASSAM. o10:oHUSSAINoALI S/O-oLATEoASORoALI o R/O-oVILL.-oBHERBHERI o P.O.-oDHUPAGURI o P.S.-oBATADRABA o DISTRICT-oNAG