WP(C) 5253/2007 BEFORE HON’BLE MR. JUSTICE B.K.. SHARMA Heard Mr. R.P. Hazarika, learned counsel for the petitioners as well as Mr. D.C. Borah, learned counsel appearing for the respondents No. 7 and 8. I hav e also heard Ms. R.Chokraborty, learned State counsel. 2. The seven petitioners who are the members of the managing committee of t he society called Raidongia Samabai Samity Ltd. have filed this writ petition ch allenging the legality and validity of the order dated 30.08.07 passed by the Jo int Registrar of Cooperative Societies, Guwahati Zone. By the said order one Shr i Tapan Kumar Saikia, Senior Inspector of Cooperative Societies, Nagaon has been appointed as Executive Officer to manage the affairs of the society until furth er order. As reflected in the order, such a course of action has been taken on t he ground that that seven members of the managing committed submitted their resi gnation in view of which the managing committee had no quorum in its meeting. Th e order has been passed in purported exercise of the power U/s 31 (3) of the Ass am Cooperative Societies Act, 1949. 3. As per the submissions made by the learned counsel for the parties, the managing committee of the society comprises of 12 members out of which 9 are ele cted and 3 are co-opted members. On the other hand, in the affidavit filed by th e said respondents, it has been stated that altogether there are 15 members. In absence of the notification, it is not discernible as how many members constitut ed the managing committee. However, learned counsel appearing for the respondent No. 7 and 8 submits that in fact, the managing committee consists of 12 members out of which 9 members are elected and 3 are co-opted. 4. The seven petitioners are stated to be the members of the managing commi ttee and it is their case that the purported resignation tendered by 7 members o f the managing committee is not borne on facts. According to them had there been any such resignation of 7 members, the instant writ petition could not have bee n moved by 7 members. Their further stand is that if there are 7 members in the managing committee out of 12, the question of lack of quorum as indicated in the impugned order does not arise. 5. In the affidavit in opposition filed by the official respondents the sta nd taken is that there was a report furnished by the Assistant Registrar of the Co-operative Societies and that in view of resignation tendered by 7 members a stalemate having been created, the impugned order had to be passed. 6. Mr. Borah, learned counsel appearing for the respondent 7 and 8 has prod uced a copy of the purported resignation letter signed by 7 members of the manag ing committee. The said resignation was tendered on 23.08.07. He has also produ ced the copy of the report dated 17.07.07 submitted to the Registrar of the Co-o perative Societies, Assam by the Assistant Registrar of Co-operative Societies, Nagaon. 7. The documents produced by the learned State counsel as well as Mr. Borah , learned counsel for the respondent No. 7 and 8 do not go the indicate that the purported resignation tendered by the seven members to the managing committee in fact, was accepted. The said resignation letter was signed by 7 persons, but there is nothing to indicate that the same was accepted. In the affidavit in opp osition also it is not the case of the official respondents that the resignation tendered by the 7 members of the managing committee has been accepted. 8. Apart from the affidavit in opposition, the impugned order dated 30.08.0 7 also speaks of the report of the Assistant Registrar of the Co-operative Socie ties, Nagaon copy of which has been produced by Mr. Borah, learned counsel for t he respondents No. 7 and 8. The report does not deal with the purported resignat ion tendered by the seven members of the managing committee. It speaks of chaoti c situation which purportedly occurred in the AGM of the Co-operative Society he ld on 27.05.07. The report is in respect of approval of the minutes of the AGM h eld on 27.05.07. The Assistant Registrar of Co-operative Societies communicated his decision not to approve the proceeding of the AGM in view of anomalies notic ed in the meeting. 9. The impugned order dated 30.08.07 has been passed not only on the basis of the purported resignation tendered by the 7 members of the managing committee of the society, but also on the basis of the aforesaid report submitted by the Assistant Registrar of the Co-operative Societies, Nagaon. Leaving aside the que stion of the purported resignation tendered by the 7 members out of 12 members o f the managing committee of the society, if any action is taken against the mana ging committee towards its dissolution, such action can be taken only after prov iding an opportunity of being heard. Section 36 of the Act deals with dissolutio n or reconstruction of the Administrative Council, Managing Body or and Committe e of a society. If the Registrar is satisfied after an inspection or enquiry un der section 60 for reasons to be recorded in writing, that the Administrative Co uncil, Managing Body or any Committee of a registered society is not functioning properly or according to this Act, rules or bye-laws, he may, after giving the offending body an opportunity to state its case, direct under clause (d) of sub- section (1) of Section 33, that a special meeting of the General Assembly be cal led within a time to be specified to dissolve the Administrative Council, managi ng body or committee concerned and to elect a new one. 10. An exception to the aforesaid provision is provided in the proviso to Se ction 36. If in the opinion of the Registrar it is necessary as an emergent meas ure to suspend the offending body forthwith, he may do so and shall appoint a pe rson or persons, on which conditions as prescribed by him, to be in full control of the suspended body until a new body has been elected or action has been take n in accordance with Section 37. 11. The effect of the impugned order dated 30.08.07 as has been agreed to by the learned counsel for the parties, is that the managing committee of the soci ety has been dissolved and that fresh election will have to be held. If this is the effect of the impugned order dated 30.08.07, then in that case, the opportun ity as contemplated U/s. 36 of the Act ought to have been provided to the manag ing committee of the society headed by the petitioner No. 1. 12. As regards the question of purported resignation tendered by 7 members o f the Society, the position will have to be judged from the fact that the instan t writ petition has been filed by the 7 members of the managing committee of the society. Even if other 5 members, 2 of whom are party respondents to this proce eding (respondents No. 7 and 8), are left aside, then also the majority of the m embers are still in the managing committee headed by the petitioner No. 1. In pa ragraph-13 of the writ petition, the petitioners have stated that the purported resignation and/or consensus arrived at was obtained by dubious method to which there is no reply from the official respondents in their counter affidavit. In t he counter affidavit, it is stated that the Assistant Registrar of the Co-operat ive Societies, Nagaon had furnished report that 7 members out of 15 of the manag ing committee submitted resignation at their own will. However, the report by th e learned counsel for the respondents No. 7 and 8, there is no such indication. Further as stated by the learned counsel for the petitioner and the respondents No. 7 and 8, the managing committee consists of 12 members and not 15 members. 13. By the impugned order dated 30.08.07 a democratically elected body has b een set at naught and has been replaced by an Officer of the respondents. Such a course of action has been adopted solely on the ground that 7 members of the ma naging committee purportedly submitted resignation and that there was a report f rom the Assistant Registrar of the Co-operative Societies. Theses aspects of the matter have been discussed above. There is nothing on record to show that the resignations tendered by the 7 members of the managing committee have been accep ted. In the report of the Assistant Registrar, this aspect of the matter finds n o mention. 14. In view of the above, the impugned order 30.08.07 passed by the Joint Re gistrar of Cooperative Societies, Guwahati Zone is set aside and quashed. The ma tter requires a fresh consideration by the Registrar of the Co-operative Societi es, Assam. He will pass appropriate order consistently with the observations mad e above upon furnishing the certified copy of this order by the petitioners as e xpeditiously as possible but not later than 15.02.08. 15. Writ petition is allowed to the extent indicated above.