WP(C) 471/2009 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (C.A.V) B. K. Sharma, J All the writ petitions by and between same parties and related to each o ther, have been heard analogously and are being disposed of by this common judgm ent and order. 2. The matter relates to holding of Annual General Meeting (AGM) and electi on in respect of the particular Cooperative Society relating to which the rival claims have been made. While in the first and second writ petitions filed by fou r petitioners and single petitioner respectively, the prayer is for setting asid e and quashing of the order issued by the Registrar of Cooperative Societies, As sam, by which the AGM/election of the society held on 21.12.2008 has been approv ed, in the third writ petition filed by two petitioners, the prayer is to set as ide and quash the inquiry report dated 29.12.2008 of the Joint Inspector/Auditor of Cooperative Societies and the order dated 2.1.2009 issued by the In-charge A ssistant Registrar of Cooperative Societies by which the AGM/election held on 21 .12.2008 has been disapproved. Although, in terms of the impugned order dated 30 .1.2009, challenged in the first and second writ petitions, the impugned order in the third writ petition dated 2.1.2009 has become redundant but the petitione rs have challenged the same as a measure of abundant caution. 3. The case has a chequered history. The Cooperative Society is known as Di bru-Dangori River Part-I Meen Samabay Samity Ltd. In the year 2007, to be precis e 30.5.2007, the AGM of the society was held. However, the business of the AGM c ould be completed only upto agenda item No.5, whereafter the meeting had to be a bandoned due to chaotic situation created by some members present in the meeting . The meeting was adjourned to 10.6.2007, on which date the adjourned meeting wa s held and a new Managing Committee was elected. However, the approval thereof w as not accorded by the authority and instead an ad-hoc committee headed by the s econd writ petitioner i.e. Shri Bhokto Das was constituted. Shri Bhokto das cont inued to manage the affairs of the Society till 26.6.2008. 4. With the aforesaid developments coupled with notices issued to several m embers of the society by Shri Bhokto Das asking as to why their names should not be deleted ; as to why they should not be categorized as Class-B share holders on the ground that other members of their family are also members of the Society , one Shri Bikas Das filed three writ petitions while Shri Bhokto Das also filed another writ petition. All the writ petitions were disposed of by order dated 2 6.6.2008 remanding the matter back to the Registrar of Cooperative Societies, As sam to consider as to whether the AGM held on 30.5.2007 and 10.6.2007 should be approved or not. The direction was also issued to consider as to whether in the given facts and circumstances, there should be fresh AGM/election of the Society . It was further provided that in the event of decision to hold fresh AGM/electi on, same should be held under the supervision of the Joint Registrar. 5. Pursuant to the aforesaid order dated 26.6.2008, the Registrar of Cooper ative Societies, Assam, passed the order dated 4.9.2008, after hearing all the p arties directing to hold AGM/election afresh as per the provision of Assam Coope rative Societies Act, Rules and bye-laws. By the said order, it was also provide d that the notices referred to above should be examined by the one man ad-hoc co mmittee appointed in the mean time and to prepare a correct voter list. 6. While it is the case of the third writ petitioner that pursuant to the s aid order dated 4.9.2008, a draft voter list, 2008 was prepared and objections w ere invited, but it is the case of the petitioners in the first writ petitioners that there was no wide circulation of the draft voter list. Be that as it may, the final voter list was published, duly countersigned by the Assistant Registr ar of Cooperative Societies to which there was no objection. Thereafter the AGM/ election was held on 21.12.2008 and the Managing Committee headed by the petitio ner No.2 in the third writ petition, as the Chairman was elected. However, on th e basis of the written objections filed by the petitioners in the first writ pet ition, viz, Hari Kumar Das, Kalicharan Das and Sushil Das, the approval of the A GM/election was refused to be granted by the Assistant Registrar of Cooperative Societies. Order to that effect was passed on 2.1.2009 which has been impugned i n the third writ petition. 7. After the said order dated 2.1.2009, the matter having been placed befor e the Registrar of Cooperative Societies, he has passed the impugned order in th e first two writ petitions dated 30.1.2009, according approval to the AGM/elect ion, held on 21.12.2008, challenging which the said two writ petitions have been filed. 8. I have heard Mr. G. N. Sahewala, learned senior Counsel assisted by Md. Aslam, learned counsel for the four petitioners in the first writ petition i.e. WP(C) 471/2009 as well as Mr. A.K. Goswami, learned senior Counsel assisted by Mr. S. Banik, learned counsel for the petitioner in the second writ petition i.e . WP(C) 482/2009. I have also heard Mr. I. Choudhury, learned counsel representi ng the petitioners in the third writ petition i.e. WP(C) 549/2009. Ms. R. Chakra borty, learned Addl. Senior Govt. Advocate has argued on behalf of the State res pondents. 9. Mr. I. Choudhury, learned counsel appearing for the two petitioners in t he third writ petition, in his elaborate arguments cited number of decisions to bring home the points he urged relating to suppression of material facts, non-jo inder of necessary parties, principles relating to reluctant approach of the wri t court when disputed question of facts are involved, waiver and estoppels, prin ciples relating to revival of illegal order in case of setting aside the order u nder challenge, collusive litigation etc. On the other hand, Mr. G.N. Sahewala and Mr. A.K. Goswami, learned counsels appearing for the petitioners in the firs t and second writ petitions, submitted that the Registrar of Cooperative Societi es could not have passed the impugned order dated 30.1.2009 sitting on appeal ov er the order passed by the Assistant Registrar of Cooperative Societies refusing to accord approval to the AGM/election of which the petitioners in the third wr it petition are the beneficiaries. They submitted that on the face of the impugn ed order dated 30.1.2009, same is contrary to the records. According to them, th e order dated 30.1.2009 has been passed on extraneous consideration. 10. I have considered the submissions made by the learned counsel for the pa rties and the materials on record. Before I proceed further with the matter, one aspect of the matter about which Mr. I. Choudhury, learned counsel for the peti tioner in the third writ petition raised serious objection needs to be attended to. Same is the striking out of the alphabet i from the word Hari which is the name of the first petitioner in the first writ petition, from the entire records of the writ petition i.e. WP(C) 471/2009, such deletion of the alphabet i is by way of making use of whitener. On verification of the records, what I find is whitener has been used to strike out i from the High Court file as w ell as from the writ petition filed with the Registry. It is clearly discernable that originally, the name was Hari but latter on, same was made Har by str king out alphabet i with the help of whitener. 11. Above aspect of the matter will have a bearing while deciding the issue at hand. As stated above, the fresh AGM/election was held on 21.12.2008 to which the four petitioners in the first writ petition raised objection. Their allegat ion was that the voter list was not given due publicity and the same was made fi nal towards holding the AGM/election. The written objection was filed on 23.12.2 008 (Annexure-II) . In the objection dated 23.12.2008, it was one Hara Kumar Das and not either Hari Kumar Das or Har Kumar Das. It is in this context, Mr. Chou dhury, learned counsel for the third writ petitioner questioned the very identit y of the first petitioner in the first writ petition. 12. In the objection filed by Hara Kumar Das, Kalicharan Das and Sushil Das, who are the petitioners in the first writ petition, along with three others, th e basic plea raised was that the petitioners were seriously prejudiced by holdin g of the AGM/election behind their back and that they being the share holders a nd members of the Society, were entitled to get prior notice relating to finalis ation of the voter list and holding of the AGM/election. 13. The written objection addressed to the Registrar of Cooperative Societie s was marked to the Deputy Registrar of Cooperative Societies by the Registrar w ith the following endorsement on the body of the objection :- D.R.C.S. - please enquire into the matter and if there is anomaly in th e voter’s list steps may be taken for correction of the voter’s list and re-elec tion may be held. In the mean time adhoc committee continue . 14. After the aforesaid objection and the endorsement, it appears that an in quiry was entrusted to Junior Inspector/Auditor of the Cooperative Societies who in turn submitted his report to the Assistant Registrar of Cooperative Societie s by his letter dated 29.12.2008. In the report, it was indicated that the objec tions raised by the four petitioners in the first writ petition are genuine and correct and that they are entitled to enlist their names in the voter list of th e Society. It was further observed that the draft voter list of 2008 was not ci rculated and published in the area of operation of the Society and that the same was furnished to only two persons, which included the petitioner in the second writ petition i.e. Shri Bhokto Das. 15. On the basis of the aforesaid inquiry report, the in-charge Assistant Re gistrar of Cooperative Societies passed the impugned order dated 2.1.2009 refusi ng to accord approval to the AGM/election held on 21.12.2008. Being aggrieved, t he petitioners in the third writ petition, preferred an appeal before the Regist rar of Cooperative Societies. In the appeal, it was stated that there were five departmental observers present in the meeting and the proceedings of the meeting was smoothly concluded and thus there was no justification in refusing to grant approval by the Assistant Registrar of Cooperative Societies. Thereafter, the R egistrar of Cooperative Societies, passed the order dated 30.1.2009 according ap proval to the AGM/election held on 21.12.2008. While doing so, he has considered the aforesaid inquiry report and the order passed by the Assistant Registrar of Cooperative Societies. 16. Shri Bhokto Das in his writ petition being WP(C) No. 482/2009 has also c hallenged, like that of the four petitioners in the first writ petition, the ord er dated 30.01.2009 by which the Registrar has granted the approval to the AGM/e lection held on 21.12.2008 of which the petitioners in the third writ petition a re the beneficiaries. Like that of the petitioners in the first writ petition, i t is the case of the petitioner that there was objection by six share holders wi th regard to non-inclusion of their names in the voter list. It appears that af ter the initial order passed by the Assistant Registrar of Cooperative Societies refusing to accord approval to the AGM/election held on 21.12.2008, process for holding fresh AGM/election was initiated with the publication of voter list etc . The fresh AGM/election was held on 30.1.2009 and the petitioner was elected as the Chairman. However, on the same day, the impugned order dated 30.1.2009 by s etting aside the earlier order of disapproval dated 2.1.2009 passed by the Assis tant Registrar of Cooperative Societies was issued and the AGM/election held on 21.12.2008 was approved. 17. As stated above, the third writ petition has been filed by the petitione rs who are the beneficiaries of the impugned order dated 30.1.2009, as a measure of abandoned caution. By the said writ petition, the prayer made is to set asid e and quash the order dated 2.1.2009 passed by the Assistant Registrar of Cooper ative Societies refusing to accord approval to the AGM/election held on 21.12.20 08 and so also to set aside and quash the inquiry report dated 29.12.2008, on th e basis of which the earlier order dated 2.1.2009 was passed. Further prayer mad e in the writ petition is to interfere with the fresh process initiated towards holding the AGM/election on 30.1.2009, of which the second writ petitioner is th e beneficiary. 18. The basic grievance of the petitioners in the first writ petition is tha t they being the bonafide members of the Cooperative society are entitled to get their names included in the voter list and then to participate in the AGM/elect ion, but the same having not been done, they have been deprived of their rights as members of the Society. As noted above, the alphabet i has been deleted f rom the entire records of the writ petition and the name Hari has been repla ced by Har making use of whitener, but on the other hand the objection filed on 2.1.2009 (Annexure-II), on the basis of which the inquiry was conducted and the consequential order dated 2.1.2009 was passed by the Assistant Registrar of Cooperative Society, the petitioner No.1 is named as Hara . Thus, 3 (three) n ames have emerged which are Hara, Hari and Har . When the very identity of the said petitioner is doubtful, it is difficult for the writ court to entertain th e grievance raised by such person. Moreso, when it is the case of the petitioner No.1 that he is a bonafide member of the Society but he does not know as to by which name he is identified. It is in this context, the petitioners in the third writ petition has raised the aforesaid objection. 19. As regards the petitioner No.2 in the first writ petition, it is the cas e of the petitioners in the third writ petition that he is not at all a bonafide member of the society. Although, the name of the petitioner No.2 is Kalicharan Das but he is the son of one Late Rotilal Das. There is another person by name K alicharan Das, son of Shri Tula Ram Das, who is a member of the society. This fa ct has been brought on record by the petitioners in the third writ petition. Apa rt from this position, another vital aspect of the matter is that in the objecti on petition dated 23.12.2008, it was stated that he had purchased a share of the said society on 20.6.1976. If that be so, going by the age declared in the writ petition, which is 48 years, he would have been only 15 years of age in 1976, d isentitling him to be a member of the society by virtue of Clause-5 of the Assam Cooperative Societies Act, 1949 read with Clause - 5(1)(a) of the Byelaws of th e Society. 20. As regards the petitioner No.3 Shri Sushil Das is concerned, it is the s tand of the petitioners in the third writ petition that he cannot be a member of the society as two of his brothers, namely, Shri Sukumar Das and Shri Sunil Das , are already members of the society, whose names were included in the draft and final voter list published in the year 2008. In this connection, clause-5(4)(a) of the Byelaws of the Society may be referred to, in terms of which, it is only Shri Sukumar Das, who could be a Class-A member after the demise of his father Navadeep Das. 21. The moot question which comes up for consideration is as to whether the draft voter list, before finalization was duly published or not and even if not published, what would be the effect of AGM/election held on 21.12.2008. While ra ising the issue of pre-judice being caused to the petitioners in the first writ petition, the petitioners will also have to establish that their names all along appeared in the earlier voter lists and that they were not aware of the draft v oter list, final voter list and the AGM/election held on 21.12.2008, even after applying due diligence. 22. From the materials on record, it appears that the draft voter list was d uly published and due notice was issued for holding the AGM/election. It was onl y after holding the AGM/Election, the objection was filed on 23.12.2008 by six p ersons of which the four petitioners involved in the first writ petition are bef ore us. In the normal course, an election held with the declaration of results s hould not be set at naught unless some glaring commission or omission on the fac e of it is noticed. In the instant case, the objection was filed on 23.12.2008, which was endorsed to the Deputy Registrar of Cooperative Societies by the Regi strar. The endorsement has been notice above. 23. It is not known as to under what circumstances, the inquiry was conducte d by the Junior Inspector/ Auditor of Cooperative Societies. It is also not know n as to under what authority, the in-charge Assistant Registrar of Cooperative S ocieties passed the order dated 2.1.2009. The things moved in quick succession. The objection was filed on 23.12.2008, it was endorsed to the Deputy Registrar o f Cooperative Societies on 24.12.2008 followed by further objection dated 26.12. 2008. Within two days thereafter, the Junior Inspector / Auditor submitted his r eport dated 29.12.2008 followed by the impugned order in the third writ petition i.e. the order dated 2.1.2009 refusing to accord approval to the AGM/election h eld on 21.12.2008. As to what transpired thereafter has been noted above which i s the impugned order dated 30.1.2009 in the first two writ petitions, which has been passed on the basis of the representation/appeal preferred by the petitione rs in the third writ petition. 24. The election having been held on 21.12.2008, merely on the basis of rais ing an objection by only six purported members of the society, the said election could not have been set at naught and that too without putting the elected memb ers to any kind of notice. The elected members, by the time the impugned order d ated 2.1.2009 had been passed, had the mandate of the electorates in their favou r. However, acting on the objection by only six purported members, of which onl y four are before this court, an inquiry was conducted behind the back of such e lected members and the entire AGM/election was interfered with by the in-charge Assistant Registrar of Cooperative Societies. 25. Clause-3 of the Cooperative Societies Act, 1949 describes the Registra r . Under Section 3 (1), the State Government may appoint a person to be Regist rar of Cooperative Societies for registration, supervision, assistance, counsel and control of registered societies. Under Section 3(1)(2), the State Governmen t may also appoint persons to assist the Registrar and may by general or special order, in writing, delegate to any such persons or to any other Government Offi cer all or any of the powers of the Registrar. Clause-8 of the Act vests the Reg istrar with the power to decide certain questions. All disputes regarding member ship for the purpose of the formation, registration or continuance of a society under the Act shall be decided by the Registrar. Section - 45 requires that ever y office bearer of a registered Cooperative Society shall produce documents and books of accounts etc. and appear before the Registrar for furnishing informatio n etc. Under Section - 55, the Registrar is responsible for audit etc. Section -60 empowers the Registrar to hold an inquiry or direct some other person autho rized by him by order in writing in this behalf, to hold an inquiry into the con stitution, working and financial condition of a registered society. Section-61 p rovides that every registered society shall be liable to inspection at any time by the Registrar or any person authorized by him in this behalf by general order . 26. Referring to the aforesaid provisions of the Act, Mr. Choudhury, learned counsel appearing for the petitioners in the third writ petition, submitted tha t the action on the part of the in-charge Assistant Registrar of Cooperative Soc ieties in passing the order dated 2.1.2009 was without any competence and jurisd iction. Nothing has been brought on record to suggest that the in-charge Assista nt Registrar of Cooperative Societies has been authorized by any general order p assed either by the State Government or by the Registrar of Cooperative Societie s empowering him in the matter of according approval to the AGM/election. The po wer vested with the Registrar could not have been exercised by the Assistant Reg istrar and that too while acting in the capacity as in-charge of Assistant Regis trar. 27. The AGM/election held in respect of the Cooperative Society could not ha ve been set at naught by the in-charge Assistant Registrar of Cooperative Societ ies on the basis of the acts done hurriedly and behind the back of the elected m embers. The petitioners in the first writ petition have miserably failed to brin g on record their very existence as members of the Cooperative Society and if th ey had been the members, their continuation thereof till date. It is in this con text, the voter lists of earlier years showing incorporation of their names were relevant which the petitioners have failed to produce. A case is not taken up a nd or decided merely on asking for it with some facts but without the basic foun dation of such fact. It is unbelievable that the petitioners, if they are the m embers of the Cooperative Society, will be oblivious of the litigations pertain ing to the said society and the fall out of the same. We will also have to see a s to what would be the effect of the kind of situation which would emerge, even if the plea of the petitioners is accepted. 28. The plea of the petitioners has been noted above. Their identity has als o been noted. With the kind of litigation they have brought, an election held in respect of the Cooperative society could not have been disapproved by a stroke of pen as was done by the Assistant Registrar of Cooperative Societies while act ing as in-charge. Although the petitioners have projected prejudice being caused to them but they have failed to demonstrate the basic foundation of the same wh ich they could have established by bringing on records the voter lists of earlie r years showing incorporation of their names. Even assuming that they were memb ers of the society at some point of time, but without anything more and without establishing the fact of continued membership, they cannot invoke the writ juris diction, so as to frustrate the democratic process of AGM/election, which was h eld on 21.12.2008. It is in this context, learned counsel for the petitioners i n the third writ petition made submissions of collusive litigation between the p etitioners in the first writ petition and the petitioner in the second writ peti tion, who are the beneficiaries of the order passed by the in-charge Assistant R egistrar of Cooperative Society. 29. The decisions on which Mr. Choudhury, learned counsel for the petitioner in