WP(C) 5212/2010 BEFORE THE HON’BLE MR JUSTICE I A ANSARI By order, dated 06.07.2010, respondent No. 4, namely, Deputy Registrar of Co-ope rative Societies, Nagaon-cum-Assistant Registrar of Co-operative Societies, Hoja i, refused to accord his approval to the proceedings of the Annual General Meeti ng (in short, ’AGM’) of Kapashbari Samabai Samiti Ltd., a co-operative society r egistered under the Co-operative Societies Act, 1940, whereby elections for the office bearers of the Managing Committee of the said society had been held on 29 .06.2010. Aggrieved by the order, dated 06.07.2010, aforementioned, whereby the respondent No. 4 herein declined to accord his approval to the said proceedings , whereby the respondent No. 6 herein, namely, Haji Unus Ali, had been elected a s the Chairman of the Managing Committee of the said co-operative society, respo ndent No. 6 preferred an appeal under Section 80 of the Assam Co-operative Soc ieties Act, 1940. By order, dated 12.08.2010, respondent No. 2, namely, Registrar, Co-operative Societies, Government of Assam, has set aside and quash ed the order, dated 06.07.2010, aforementioned and, thereby, upheld the election s, which were claimed to have been held, on 29.06.2010, in the AGM of the said c o-operative society. In terms of the directions, given in the order, dated 12.0 8.2010, the Managing Committee, constituted in the said AGM, was restored. Aggr ieved by the order, dated 12.08.2010, aforementioned, the petitioners, who are m embers of the said society, have filed this writ petition, under Article 226 of the Constitution of India, posing challenge to the legality and validity of the order, dated 12.08.2010, passed by the respondent No. 2 herein. Heard Mr. A. K. Goswami, learned Senior counsel, appearing on behalf of the petitioners, and Ms. B. L. Sinha, learned Government Advocate, appearing on behalf of respondent Nos. 1 to 5. Heard also Mr. H. R. A. Choudhury, learned Se nior counsel, appearing on behalf of respondent No. 6. Before coming to the correctness and/or legality of the impugned order, it needs to be noted that respondent No. 6, namely, Kapashbari Co-operative Sama bai Samiti Ltd., represented by its Chairman, came to this Court with a writ a p etition, filed under Article 226 of the Constitution of India, which gave rise t o WP(C) No. 3506/2010. By the said writ petition, the writ petitioner sought to get set aside and quashed the letter, dated 26.05.2010, whereby the said societ y had been directed by the Court to hold AGM/elections of the said society withi n 29.06.2010, the ground of challenge to the said order, dated 26.05.2010, being that it was not possible to hold AGM/elections of the said society inasmuch as the correct voters’ list was yet to be prepared and that the Gaonburas of that l ocality were not in a position to co-operate with the Managing Committee of the society due to ongoing population census and, hence, the requisite formalities, required to be observed for holding the elections, were not possible to be obser ved. By order, dated 21.06.2010, the said writ petition was dismissed. While disposi ng of the writ petition, on 21.06.2010, the High Court pointed out that, in term s of the provisions of Rule 36(11) of the Co-operative Societies Rule, 1953, it is the duty of the Managing Committee to convene AGM in due time and, as per pro vision of Bye-law 15(3) of GPSS, Managing Committee of a GPSS shall prepare and publish the Shareholders’ list (Voters list) 30 days before the AGM. The Court, therefore, held, in its order, dated 21.06.2010, that it was of the considered opinion that the petitioners should hold the AGM/e lections as scheduled on 29.06.2010. The Court further held that the petitioner society would take all steps for holding of AGM/elections within the stipulated period, i.e., 29.06.2010, failing which law would take its own course. The rel evant part of the observations of the Court are reproduced below: It is the duty of the Managing Committee to convene AGM in due time and as per provision of Bye-law 15(3) of GPSS, Managing Committee of a GPSS shall prepare a nd publish the Shareholders list (Voters list) 30 days before the AGM. IN the in stant case, the petitioners did not do anything in this regard and now have file d the instant writ petitions praying for extension of further time. As regards t he engagement of Gaonburahs in census work and thereby the correction of voters list of the Society has been hampered, it has been stated that Gaonburahs are no t authorised to issue death certificate and thus, the pre-occupation of Gaonbura hs in ongoing census duty cannot be a ground for extension of time for correctio n of voters list. The respondents have also cited the example of Dakhin Jogijan SS Ltd., which Society was also provided with extension of one month time statin g that the said Society is going to hold AGM on 28.06.2010 after making necessar y correction of voters list in similar condition like that of the petitioners. In view of the above and having regard to the fact that the AGM/Elections are re quired to be held within the stipulated period of time and also the fact that th e petitioners have already been provided with one month extension of time, I am of the considered opinion that the petitioners should hold the AGM/Election as s cheduled on 29.06.2010. Consequently, the writ petitions are dismissed. It is expected that the petitioner’s Societies will take all steps for h olding of AGM/Elections within the stipulated period i.e. 29.06.2010 failing whi ch, law will take its own course. The respondent No. 6 claims that following the dismissal of the writ pet ition by the order, dated 21.06.2010, an AGM of the said society was convened on 29.06.2010, the elections for the members of the Managing Committee of the said society was held in the said meeting and that a Managing Committee was constitu ted with him (respondent No. 6) as the Chairman of the said society. The respon dent No. 4 herein, however, as indicated above, declined to approve the proceedi ngs of the AGM/elections, by his order, dated 06.07.2010. The reasons, assigned for declining to approve the proceedings of the said AGM/elections, were as und er: It is hereby informed you that approval cannot be accorded to the proceedings o f the Annual General Meeting/Election of your Society held on last 29.06.2010 du e to the following irregularities. Irregularities are : 1. As per Bye-Laws 18(1) fifteen day’s notice is required before General Me eting is convened but you have taken the resolution to hold General Meeting on 2 9.6.2010 in the Executive Meeting dated 23.6.2010 and also mentioned the date of publishing notice as 24.6.2010 in the notice copy. Therefore, it is true that y ou have not given notice before 15 (fifteen) days. 2. As per Bye-Laws 18(1), the nomination paper is required to be accepted b efore 10(ten) days of the General Meeting but it is seen that the nomination pap ers have been accepted on 26.6.2010 by you. Therefore, it is seen that you have not accepted the nomination papers before 10 (ten) days. 3. As per Bye-Laws 18(1), the proceedings of Election in the General Meetin g is required to be conducted by a Returning Officer appointed by the Assistant Registrar but the same has not been done. As already indicated above, aggrieved by the order, passed by the respondent No. 4, an appeal was preferred before the respondent No. 2 herein, namely, Registra r of Co-operative Societies, Assam, and, by order, dated 12.08.2010, which stand s impugned in this writ petition, respondent No. 2 herein set aside the said ord er, dated 06.07.2010, passed by respondent No. 4, and restored the Managing Comm ittee, which was claimed to have been constituted in the AGM on 29.06.2010. The reason for upholding the election of the said society, which was claimed to hav e been held on 29.06.2010, as recorded by the respondent No. 2, in the impugned order, read as under: The ARCS, Hojai informed that the society failed to fulfil the provisions of th e Act, Rules and the Bye-Laws while arranging for the AGM and hence did not depu te Returning Officer of the Election agenda and subsequently disapproved the pro ceedings. The Secretary of the society informed that the Voters’ List of the society was p ublished in May, 2010 and no new member was admitted in the society and notices were sent to the Govt. Gaon Burrahs and Gaon Panchayat offices inviting claims a nd objections from the shareholders for rectification of the list. However, he i nformed that no petition was received from the shareholders in this regard. Acco rdingly notice for the AGM was sent to the GP offices on 24.6.2010 as directed b y the MC. He intimated that the Voters’ List was a correct one and AGM was held on 29.6.2010 on the basis of the Voters’ List. However, he further informed tha t the Managing Committee (hereinafter called the MC) authorised him to accept no minations as the ARCS, Hojai did not depute any Returning Officer, but there was no election in the AGM of the society on 29.6.2010 as nominations were withdraw n by some of the candidates and the MC was formed amicably. The secretary in his oral deposition, reiterated that he had to take steps for holding of the AGM of the society within 29.6.2010 in view of the order of the Hon’ble Court to hold the AGM within 8(eight) days and accordingly he took steps for holding the AGM t o avoid contempt of the Hon’ble Court. The matter in hand is similar to that of the AGM of Barbali Samarali SS Ltd. As a matter of fact the Hon’ble Gauhati High Court vide order dated 21.6.2010 club bed 2 writ petitions and disposed of the matter of holding of AGM by Barbali Sam arali SS and Kapashbari SS Ltd. by a single order. Here, it has been observed th at the possibility of contempt of the court could not be ruled out if the order of the Hon’ble Court was not complied with within the time specified as the Hon’ ble Court referred to the provisions of the Act and the Bye-Laws before passing the order and still prescribed the time limit. What reveals here is the failure of the departmental officer posted in the society and other field officers to gu ide the society to comply with the order of the Hon’ble Court as well as the pro visions of the Act and the Bye-Laws by initiating the process for holding of the AGM within the time specified adhering to the provisions and later move the Hon ’ble Court again for further directions. The role of our field officers is a sup portive one. It is expected that they guide and assist the cooperative societie s in the matter of holding of the AGM as prescribed by the Act. But it revealed that in the instant case the MC of the society was not at all guided properly in their attempt to install a democratically elected MC in the society and althoug h 114 shareholders attended the said AGM (where 100 is the quorum) the entire pr oceedings had to be cancelled. In the instant case lack of supervision in the ma tter of holding of the AGM as per the provisions of the Act and the Bye-Laws was evident which subsequently led to the disapproval of the proceedings of the AGM . There was a departmental officer in the society whose duty was to supervise th e functions of the society but there was no supervision so far compliance of the provisions of the Act and the Bye-Laws was concerned. A cooperative society is an autonomous body managed by the shareholders and hence the efforts of the soci ety, to initiated holding of the AGM as per the order of the Hon’ble Court there fore cannot go in vain merely due to failure on the part of the departmental off icers and therefore the efforts of the MC vis-à-vis the order of the Hon’ble Gau hati High Court is taken into consideration to decide the fate of the AGM held o n 29.6.2010 as there have been records to verify that the AGM was held that day. Now, therefore, to meet the ends of justice and to protect the interest of the s hareholders of Kapashbari SS Ltd. in particular and the cooperative movement in general, I, Sri S K Nath, IAS, Registrar of Cooperative Societies, Assam do here by quash the order of the ARCS, Hojai issued vide No.CHGL.9/pt-III/93/409 dated 6.7.2010 cancelling the proceedings of the said AGM of Kapashbari SS Ltd. on 29. 6.2010 and the MC constituted in the AGM is hereby restored. The moot question, which falls for determination, in the present writ petition, is whether the election of the said society, which is claimed to have been held on 29.06.2010, was sustainable in law and ought to have been approved by the res pondent No. 4 ? While considering the question, posed above, it needs to be noted that the irreg ularities, which were pointed out by the respondent No. 4, while declining to ap prove the proceedings of the AGM/elections of the said society, could not be, an d have, in fact, not been, disputed in the present writ petition. In other words , it is an admitted position that the irregularities, or violations of the provi sions of the Bye-Laws, which the respondent No.4 has pointed out, in his order, dated 06.07.2010, are correct. However, the said order has been set aside by the respondent No. 2. Consequently, while holding the elections - if the elections were held at all on 29.06.2010 - the relevant provisions of the Bye-Laws, which govern the election s of the society, in question, could not have been complied with and were, there fore, admittedly, ignored in their totality. Notwithstanding, however, the fact that the requirements for holding of an elect ion, as provided in the Bye-Laws, had not been followed, the justification offer ed for sustaining the election (as discernible from the contents of the impugned order, dated 12.08.2010) is that the High Court had directed, in its order, dat ed 21.06.2010, in WP(C) No. 3502/2010, that the elections should be held as sche duled on 29.06.2010. I have already pointed out as to what observations and directions given by the C ourt were. The Court did not give any direction for holding the election within 29.06.2010 by fair means of foul, i.e., either by complying with the relevant pr ovisions of the Bye-Laws or by complete denial thereof. What the Court had obser ved was, if I may reiterate, thus: In view of the above and having regard to the fact that the AGM/Elections are r equired to be held within the stipulated period of time and also the fact that t he petitioners have already been provided with one month extension of time, I am of the considered opinion that the petitioners should hold the AGM/Election as scheduled on 29.06.2010. Consequently, the writ petitions are dismissed. It is e xpected that the petitioner’s Societies will take all steps for holding of AGM/E lections within the stipulated period i.e., 29.06.2010, failing which, law will take its own course. The observations, so made, clearly show that it was the considered view of the C ourt that the petitioners in the writ petitions (which were disposed of) should hold the AGM/elections, as scheduled, on 29.06.2010, and that they would take st eps for holding of the AGM/elections within 29.06.2010 failing which law would t ake its own course. ’Law will take its own course’ would mean such consequential action(s), which may be permissible in law. If it was impossible to hold AGM/el ections in accordance with law, the directions given by the Court did not stand in the way. The directions, so given, did not, in any way, overturn the conditions precedent for holding of an election, as have been embodied in the Bye-Laws of the societ y. When the High Court observed that it was expected that the elections of the s ociety should be held on 29.06.2010, it is implied that the High Court had direc ted holding of the elections in accordance with law meaning thereby that the con ditions precedent, which are embodied in the Bye-Laws of the society, ought to h ave been followed while holding the elections. There is nothing in the material s on record, or in the order, dated 21.06.2010, passed in the earlier writ petit ion, to indicate that the High Court had waived the requirements of giving requi site notice to the members for holding of the AGM/elections. Even the responden t No. 6 did not point it out to the Court, in his said writ petition, that if it were to hold the elections, adequate time would be necessary for the purpose of complying with the requirements of giving notice to the members and to observe other formalities. The sole ground, on which the respondent No. 6 had come to t he Court with the earlier writ petition, was that the voters’ list had not been prepared in the manner in which the same ought to have been prepared and, hence, the directions, given by the order, dated 26.05.2010, to hold the elections, on 29.06.2010, is illegal. In fact, what the order, dated 26.05.2010, indicated wa s that the requirements of preparing fresh voters’ list was not necessary. The order, dated 12.08.2010, which even the respondents rely upon, clearly shows tha t the Secretary of the society had informed respondent No. 2 that the voters’ li st had been published in May, 2010, and no new member had been enrolled/enlisted in the society since the year 2000. In such circumstances, what had been dispe nsed with by this Court was the requirement of preparing a fresh voters’ list. Other formalities, which were to be observed by the persons conducting the elect ions, had not been waived by the Court and the respondents cannot, therefore, ta ke advantage of the innocence of the Court by contending that the Court had perm itted/directed them to hold the elections by ignoring the requirements, as embod ied in the Bye-Laws, with regard to the holding of elections of the society. Situated thus, it is clear that the AGM/elections, held in the manner, in which it has been claimed to be held, could not have been sustained. The respondent No . 4 was, therefore, wholly justified in refusing to accord approval to the proce edings of the said AGM/election of the society, which was claimed to have been h eld on 29.06.2010. The respondent No. 2 has interfered with the order of the re spondent No. 4, dated 06.07.2010, on the sole ground that the elections of the s ociety had been held in order to abide by the directions given by the High Court to hold the elections of the society within a stipulated time. Because of what have been discussed and pointed out above, this Court is of the firm view that in the facts and attending circumstances of the present case, the impugned order, dated 12.08.2010, cannot be sustained. It has been pointed out, at this stage, by the respondent No. 6, that the presen t petition seeks to get set aside and quashed the election of not only the Chair man of the society, but also of the other office bearers, but, in the absence of those members/office bearers, particularly, when they are not parties to this w rit proceedings, their elections cannot be set aside without giving them an oppo rtunity of hearing and, for this purpose, they ought to have been made parties t o the writ petition. Controverting the submissions, made on behalf of respondent No. 6, Mr. Goswami h as pointed out that as far as the order, dated 06.07.2010, passed by the respond ent No. 4, refusing to accord approval to the proceedings of the AGM/election, w hich is claimed to have been held on 29.06.2010, is concerned, none other than t he Chairman of the society had preferred an appeal, which, according to Mr. Gosw ami, makes it abundantly clear that the remaining members/office bearers, who ar e claimed to had been elected in the said AGM/elections, have no grievance again st the order, dated 06.07.2010. I find considerable force in the above submissions, made on behalf of the petiti oner, inasmuch as the remaining elected members/office bearers of the Managing C ommittee had accepted the order of the respondent No. 4, passed on 06.07.2010 an d, hence, though they have not been made parties in this writ petition, the writ petition cannot fail, for, they were, at any rate, in the facts and attending c ircumstances of the present case, not necessary parties having accepted the orde r, dated 06.07.2010. It was only respondent No. 6, who had challenged the order, dated 06.07.2010, and he shall, therefore, the only aggrieved party and it is, at his behest, that the order, dated 06.07.2010, was set aside by the order, dated 12.08.2010. The other elected members/office bearers of the Man aging Committee cannot, therefore, if I may reiterate, be necessary party. Because of what have been discussed and pointed out above, this writ petition su cceeds. The impugned order, dated 12.08.2010, is hereby set aside and quashed a nd the order, dated 06.07.2010, passed by the respondent No. 4, is hereby upheld . The respondent No. 2 is hereby directed to convene AGM/elections of the socie ty by appointing an Executive officer for this purpose and ensure that the elect ions, which are hereby directed to be held, are held by complying with the requi rements of law including the provisions of the Bye-Laws of the society. The who le exercise, so directed, shall be completed within a period of six weeks from t he date of receipt of a copy of this order by respondent No. 2. The petitioner shall remain at liberty to furnish a certified copy of this order to the respond ent No. 2 alongwith a copy of this writ petition and annexure(s) thereto. With the above observations and directions, this writ petition stands disposed o f. No order as to costs.