WA 84/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE P.K.MUSAHARY Amitava Roy, J The judgment and order dated 9.3.2011 passed in WP(C) No. 1352/2 011 preferred by the present respondent Nos. 1,2 and 3 forms the subject matter of challenge in the instant appeal. By the decision impugned, the notice dated 1 9.2.2011 issued by the Secretary, Patamari Samabai Samity Limited, Newghat, Dhub ri (for short, hereinafter referred to as ’the Samity’) fixing 10.3.2011 as the date of election, amongst others, of the office bearers thereof has been set asi de with the direction to the Executive Officer of the said Samity to incorporate all the names of the shareholders in the voters’ list and to obtain the approva l of the Assistant Registrar of Cooperative Societies, Dhubri in accordance with law before issuing a notice convening the Annual General Meeting of the Samity. 2. We have heard Mr AB Choudhury, Senior Advocate for the appellant s; Mr PS Deka, learned Govt. Advocate, Assam for the official respondents; Mr I Choudhury, Advocate for the respondent Nos. 1,2 and 3; Mr J Abedin, Advocate for the respondent No. 10 and Mr DA Kaiyum, Advocate for the respondent Nos. 8,11 a nd 12. 3. The present controversy has a chequered history which for the pu rpose of the instant appeal does not warrant a dilation of inessential facts. T he shareholders/ members of the Samity have, by turn, approached this Court with various issues and eventually by order dated 12.1.2011 passed in WP(C) No. 6314 /2010, this Court directed the One-Man Ad-hoc Committee in place to hold the ele ction/ Annual General Meeting of the Samity within 28.2.2011. The Deputy Registr ar of Cooperative Societies, Dhubri was directed to oversee the entire process o f election. The Executive Committee of the Samity thereafter in its meeting held on 24.1.2011 following necessary deliberations, drew-up a voters’ list of 3814 members and resolved to forward the same to the Assistant Registrar of Cooperati ve Societies, Dhubri for his approval as required in law. This was on 25.1.2011. According to the writ petitioners, for impertinent and collateral consideration s the list was not forwarded by the Secretary of the Samity in connivance with t he respondent No.5 (in the writ petition) whereupon the Executive Officer on 4.2 .2011 required the Secretary to provide the voters’ list. According to the petit ioners, on 9.2.2011 the Executive Officer of the Samity collected the voters’ li st and submitted it to the Assistant Registrar of Cooperative Societies, Dhubri for approval. Though the said State authority was requested by the Executive Off icer of the Samity to take a decision on the voters’ list in absence whereof it was not possible for the Samity to notify the date of election, the former did n ot respond. Situated thus, the Secretary and the Executive Officer of the Samity in deference to the order dated 12.1.2011 of this Court, on 19.2.2011 convened the election on 10.302011 fixing 28.2.2011 as the date for submission of the nom ination papers. 4. It was on 24.2.2011 that the Assistant Registrar of Cooperative Societies by a letter of the same date asked the Executive Officer/Secretary of the Samity to provide a correct voters’ list. While the matter was thus pending, as the writ petitioners allege, the Assistant Registrar of Cooperative Societie s in a surreptitious manner declined to accord his approval to the voters’ list drawn up by the Executive Committee on 24.1.2011 and accorded his approval on 25 .2.2011 to another voters’ list containing the names of only 2618 members thereb y omitting 1201 legitimate shareholders and, thus, depriving them of their suffr age. The challenge in the aforementioned writ petition was laid in this backgrou nd seeking annulment of the approval dated 25.2.2011 of the Assistant Registrar of Cooperative Societies of the Voters’ list dated 22.2.2011. Interference with the result of the nominations on the basis of the said voters’ list and suspensi on of the process of election as notified vide notice dated 19.2.2011 was also s ought for. During the pendency of the writ petition, one Azahar Ali and Zahidur Islam were impleaded as respondent Nos. 8 and 9. 5. The learned Single Judge on a consideration of the pleadings ava ilable, by the impugned judgment and order interfered with the notice dated 19.2 .2011 notifying the election with the consequential directions as referred to he reinabove. Inspite of this determination by the learned Single Judge, the electi on was held on 10.3.2011 and the appellant No.1 was elected as the Vice-Chairman of the Managing Committee of the Samity with the appellant Nos.2 to 11 as the m embers thereof. Apart from contending that they were unaware of the institution of the writ petition not having been impleaded therein, they have endorsed the v oters’ list approved by the Assistant Registrar of Cooperative Societies on 25.2 .2011 to be a valid one dismissing as well the one dated 24.1.2011 which, accord ing to them, included 1195 new members though not entitled to be enlisted in the voters’/ members’ roll. According to them, the election was held in an orderly manner and the new Managing Committee had been elected by a majority of votes in a democratic process. That the proceedings of the election though laid with the Assistant Registrar of Cooperative Societies, Dhubri, have not been approved, h owever, has been mentioned by them. 6. Mr Choudhury while questioning the locus standi of the writ peti tioners, has strenuously urged that as the process of election involved is not g overned by common law norms and no statutory right of theirs in the facts and ci rcumstances of the case has been infringed, the writ petition ought to have been dismissed in limine on this count alone. Even assuming without admitting that t here subsisted a dispute with regard to the voters’ list on the date of the elec tion, no interference in the exercise of the writ jurisdiction of this Court dur ing the continuance of the process was permissible. As by the exercise was under taken on the basis of the voters’ list in terms whereof the writ petitioners had no right to participate therein, neither any prejudice could have been caused t o them nor any public interest has been jeopardized, he urged. The learned seni or counsel for the appellants, therefore, contended that interference with the p rocess of election in the attendant facts and circumstances has been unwarranted . To reinforce his arguments, Mr Chouhdury has placed reliance on the decision of the Apex Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakar i Dugdha Utpadak Sanstha & Anr. -vs- State of Maharashtra & Ors., 2001 (8) SCC 5 09 and also on an extract from the Law of Elections, Second Edition by N.P. Cha palgaonker . 7. Whereas Mr Deka refrained from offering any comment, Mr I Choudh ury while reiterating the challenge laid in the writ proceeding, has in particul ar referred to the letter No. GPSS. 6/86/3 dated 11.7.86 of the Registrar of Coo perative Societies, Assam and Clause-15 of the Model bye-laws applicable to the Samity. He has urged in particular with reference to the above bye-laws that as in terms thereof a voters’ list is to be obligatorily prepared before 30 clear d ays of the Annual General Meeting, the notice dated 19.2.2011 is patently in tra nsgression of such mandatory prescription and has been rightly interfered with. As admittedly, no correct and approved voters’ list was in existence on 19.2.20 11, the process initiated thereby was void ab initio and, thus, the impugned jud gment and order does not call for any interference in the appeal. 8. The learned counsel for the appellants, however, has sought to n euter this plea by contending that these bye-laws being directory in nature, eve n assuming that the process of election was not conducted in strict adherence th ereto, no invalidation thereof would ensue ipso facto. 9. We have extended our anxious consideration to the rival pleading s and the arguments advanced on the basis thereof. As the writ petition would re veal, the respondent Nos. 1,2 and 3 as the writ petitioners had sought for the a nnulment of the voters’ list dated 22.2.2011 and the approval thereto granted by the Assistant Registrar of Cooperative Societies, Dhubri on 25.2.2011 on the ba sis of which eventually the election was held on 10.3.2011. The writ petitioner s, as a matter of fact, had impugned the process as a whole including the nomina tions therefor. Admittedly, the rival pleadings would reveal that on the date of issuance of the notice dated 19.2.2011 notifying the election on 10.3.2011 ther e was no approved voters’ list containing the names of the eligible members/ sha reholders of the Samity. The voters’ list on the basis of which the election was eventually held on the same date had been approved by the Assistant Registrar o f Cooperative Societies, Dhubri only on 25.2.2011. 10. There is no wrangle at the Bar that the Model bye-laws produced in course of the arguments govern the Samity as well. In terms of Clause-15(3) t hereof the Managing Committee has to mandatorily prepare the list of shareholder s before 30 days of the Annual General Meeting in the manner as set out in Claus e-15(1) and (2) thereof. Clause-15(4) prohibits inclusion of any person as a mem ber of the Society within 30 days of the Annual General Meeting in which the mem bers of the Managing Committee are to be elected. The letter dated 11.7.86 issue d by the Registrar of Cooperative Societies, Assam, the applicability whereof vi s-à-vis preparation of the list of eligible members of the Samity has not been questioned, also stipulates with reference to the bye-laws that the management i s required to prepare a list of all eligible members before 30 days of the Annua l General Meeting. 11. The existence of a list of eligible members of the Samity before 30 days of the Annual General Meeting in which the members of the Managing Comm ittee are to be elected, therefore, is an indispensable pre-requisite for a vali d election. In the facts and circumstances of the case, it is incontrovertible t hat no such list of eligible members of the Samity as approved by the Assistant Registrar of Cooperative Societies, Dhubri was in existence on the date on which the notice dated 19.2.2011 had been issued. In that view of the matter, we are of the unhesitant opinion that the proceedings of the Annual General Meeting hel d on 10.3.2011 were in apparent violation of the prescription of Clause-15 of th e bye-laws as well as the enjoinment to this effect as embodied in the letter da ted 11.7.86 of the Registrar of Cooperative Societies, Assam. The view taken by the learned Single Judge, therefore, cannot be faulted with. Further, the notice dated 19.2.2011 and the proceedings that followed thereafter on the basis there of having been annulled by the impugned judgment and order dated 9.3.2011, the p roceedings of the Annual General Meeting held on 10.3.2011, therefore, have to b e construed as non-est. 12. The averments made in the writ petition carried the grievance of the petitioners of having been illegally excluded from the voters’ list dated 2 4.1.2011. In that view of the matter, want of their locus to question the contem plated election on the basis of a voters’ list to their exclusion is unconvincin g. The decision relied upon by the learned counsel for the appellants is also of no avail in the factual setting as it obtains herein. In the contextual facts o f the decision pressed into service the election had been held on the basis of a n existing voters’ list, though disputed. As a matter of fact, in the said case such a voters’ list had existed when the process of election had been initiated. The facts herein are clearly distinguishable. Though in general terms, having r egard to the factual background in the reported decision the legal proposition l aid down therein is unquestionable, this is of no avail in the present set of fa cts. 13. In the above view of the matter, having regard to the aforementi oned findings, we are constrained to hold that the appeal lacks in merit. It is, thus, dismissed. No costs/