Sri Bidyadhar Doley (Madhab) v. Nilakanta Daflari and 13 Ors.

Gauhati HC7 Feb 2019I.A.(Civil)/3975/2018

Case brief

AI extract

What is this about?

In an application seeking vacation of an interim order staying the discharge of an applicant as Chairman of a Cooperative Society, the Court found the interim order cannot be vacated. However, relying on statutory appeal rights, the Court granted liberty to the applicant to file an appeal before the Registrar within 30 days. Both the application and writ petition were disposed of.

What did the court decide?

Disposal of the application and writ petition; liberty granted to the applicant to file an appeal before the Registrar of Cooperative Societies within 30 days.

Sri Bidyadhar Doley (Madhab) Vs Nilakanta Daflari and… — Cooperative Societies | Gauhati HC (2019)

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GAHC010251362018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil) 3975/2018 In WP(C) No.6509/2018

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1:SRI BIDYADHAR DOLEY (MADHAB) S/O- NABIN DOLEY R/O- VILL.- TEGJURI PATIRICHUK, P.O.- JIADHAL, P.S.- DHEMAJI, DIST.DHEMAJI, ASSAM

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VERSUS

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1:NILAKANTA DAFLARI AND 13 ORS. S/O- LATE SUNESWAR DAFLARI R/O- VILL.- NO. 1 GEYARI, P.O.- JIADHAL CHARIALI, P.S. AND DIST.DHEMAJI, ASSAM

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2:PRABHAT GOGOI S/O- TILESWAR GOGOI R/O- VILL.- SAMARAJAN P.O.- JIADHAL CHARIALI P.S. AND DIST.- DHEMAJI ASSAM

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3:SASHI PRAVA DOLEY CHANGMA W/O- GOIBIN SANGMA R/O- VILL.- KARICHUK P.S. AND DIST.- DHEMAJI ASSAM

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4:HIRANYA DOLEY W/O- JULEN DOLEY R/O- VILL.- PATRISHUK P.S. AND DIST.- DHEMAJI ASSAM

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5:MEGHANATH DOLEY S/O- DEVIRAM DOLEY R/O- VILL.- KEKURI P.S. AND DIST.- DHEMAJI ASSAM

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6:BANESWAR DOLEY S/O- BALU DOLEY R/O- VILL.- TINIGHORIA P.S. AND DIST.- DHEMAJI ASSAM

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7:PARESH PEGU S/O- JIBAN PEGU R/O- VILL.- KEKURI P.S. AND DIST.- DHEMAJI ASSAM

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8:ANANTA DOLEY S/O- LATE GANDHI DOLEY R/O- VILL.- BARMATHAURI P.S. AND DIST.- DHEMAJI ASSAM

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9:MAHENDRA BISWAS S/O- LEKHAN BISWAS R/O- VILL.- JYOTINAGA P.S. AND DIST.- DHEMAJI ASSAM

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10:THE STATE OF ASSAM

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REP. BY THE SECRETARY TO THE CO-OPERATION DEPARTMENT DISPUR GUWAHATI- 6.

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11:THE REGISTERER SOCIETIES REGISTRATION ASSAM KHANAPARA. GUWAHATI-22

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12:THE DEPUTY COMMISSIONER DHEMAJI DHEMAJI ASSAM

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13:THE ASSISTANT REGISTER OF CO-OPERATIVE SOCIETIES DHEMAJI DHEMAJI ASSAM

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14:THE SECRETARY JIADHAL SS LTD. KARISHUK DHEMAJI ASSA

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Advocate for the Petitioner : MR. S BORTHAKUR

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Advocate for the Respondent : GA, ASSAM

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WP(C) 6509/2018

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1:NILAKANTA DAFLARI AND 8 ORS. S/O. LT. SUNESWAR DAFLARI VILL. NO.1 GEYARI P.O. JIADHAL CHARIALI P.S. DHEMAJI DIST. DHEMAJI ASSAM.

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2: PRABHAT GOGOI

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S/O. TILESWAR GOGOI VILL. SAMARAJAN P.O. JIADHAL CHARIALI P.S. DHEMAJI DIST. DHEMAJI ASSAM.

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3: SASHI PRAVA DOLEY CHNGMA W/O. GOIBIN SANGMA VILL. KARICHUK P.S. DHEMAJI DIST. DHEMAJI

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ASSAM.

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4: HIRANYA DOLEY W/O. JULEN DOLEY VILL. PATRISHUK P.S. DHEMAJI DIST. DHEMAJI ASSAM.

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5: MEGHANATH DOLEY S/O. DEVIRAM DOLEY VILL. KEKURI P.S. DHEMAJI DIST. DHEMAJI ASSAM.

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6: BANESWAR DOLEY S/O. BALU DOLEY VILL. TINIGHORIA P.S. DHEMAJI DIST. DHEMAJI ASSAM.

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7: PARESH PEGU S/O. JIBAN PEGU VILL. KEKURI P.S. DHEMAJI DIST. DHEMAJI ASSAM.

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8: ANANTA DOLEY S/O. LT. GANDHI DOLEY VILL. BARMATHAURI P.S. DHEMAJI DIST. DHEMAJI ASSAM.

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9: MAHENDRA BISWAS S/O. LEKHAN BISHAS VILL. JYOTINAGA P.S. DHEMAJI DIST. DHEMAJI ASSAM. VERSUS

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1:THE STATE OF ASSAM AND 5 ORS. REP. BY THE SECRETARY TO THE CO-OPERATION DEPTT. DISPUR

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GUWAHATI-06.

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2:THE REGISTERER SOCIETIES REGISTRATION ASSAM KHANAPARA GUWAHATI-22. 3:THE DY. COMMISSIONER DHEMAJI DHEMAJI ASSAM. 4:THE ASSTT. REGISTER OF CO-OPERATIVE SOCIETIES DHEMAJI DHEMAJI ASSAM. 5:THE SECRETARY JIADHAL SS LTD. KARISHUK DHEMAJI ASSAM. 6:BIDYADHAR DOLEY (MADHAB) S/O. NABIN DOLEY VILL. TEGJURI PATIRICHUK P.O. JIADHAL P.S. DHEMAJI DIST. DHEMAJI ASSAM. Advocate for the Petitioner : MR J PAYENG Advocate for the Respondent : GA ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE UJJAL BHUYAN

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ORDER

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Date : 07-02-2019

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Heard Mr. S Borthakur, learned counsel for the applicant and Mr. J Payeng, learned counsel for the opposite party/writ petitioner Nos.1 to 9. Also heard Dr. B Ahmed, learned Standing Counsel, Cooperation Department, Assam.

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By this application, applicant seeks vacation of the interim order dated 21.09.2018

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passed by this Court in the related WP(C) No.6509/2018.

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In the said writ petition, applicant is respondent No.6 whereas opposite party Nos.1 to 9 are the writ petitioners. Relevant portion of the order dated 21.09.2018 is extracted hereunder: -

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“ According to the petitioners, they are Members of the Board of Directors of Jiadhol Samabai Samittee, Dhemaji (Society) which is a cooperative society registered under the provisions of the Assam Cooperative Societies Act, 1949 and governed by the provisions of the successor Act, i.e., Assam Cooperative Societies Act, 2007. Petitioners had given notice of no confidence against respondent No.6 who is the Chairman of the Society and sought for a meeting to discuss the motion of no confidence. Respondent No.6 did not respond to such notice. Thereafter, a meeting was held on 17.08.2018 wherein resolution was adopted that respondent No.6 had ceased to function as Chairman of the Society for his failure to convene the meeting within 15 days of notice. Proceedings of the said meeting have been forwarded to the Assistant Registrar of Cooperative Societies, Dhemaji but no decision has been taken thereon.

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Issue notice, returnable eight weeks.

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Dr. B. Ahmed, learned Standing Counsel, Cooperation Department, accepts notice on behalf of respondent Nos.1, 2, 4 and 5 whereas Ms. M. Bhattacharjee, learned Govt. Advocate, Assam accepts notice on behalf of respondent No.3.

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Extra copies within three days.

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Notice to respondent No.6 by registered post with AD. Steps within three days.

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Having heard learned counsel for the parties and on due consideration, Assistant Registrar of Cooperative Societies, Dhemaji is directed to ensure that respondent No.6 does not function as Chairman of the Society until further orders.”

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Applicant as well as the opposite party Nos.1 to 9 are members of the Board of Directors of Jiadhol Samabai Samittee Ltd. Dhemaji (Society), which is a cooperative society governed by the provisions of Assam Cooperative Societies Act, 2007 (2007 Act), of which applicant was the Chairman. Alleging various illegalities committed by the applicant, opposite party Nos.1 to 9 gave a requisition notice to him on 02.08.2018 conveying that majority of the Directors had lost confidence in him and, therefore, they wanted his removal as Chairman of the Society. For the aforesaid reason, they demanded that special meeting of the Board of Directors be convened immediately.

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Pursuant thereto notice dated 15.08.2018 was issued by the Secretary of the Society stating that an emergent meeting of the Board of Directors would be held on 17.08.2018 at 11 am in the office premises. However, no meeting was held on 17.08.2018. Thereafter on the same date and time, opposite party Nos.1 to 9 held a meeting and vide resolution No.1 removed the applicant as Chairman of the Society. In addition, they elected opposite party No.5 Sri Meghanath Doley as the Chairman of the Society.

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With the grievance that authorities of the Cooperation Department, more particularly Assistant Registrar of Cooperative Societies, Dhemaji was not according approval to the resolution of the meeting held on 17.08.2018, the related writ petition came to be filed. As noticed above, by the order dated 21.09.2018, this Court had issued notice and in the interim, directed Assistant Registrar of Cooperative Societies, Dhemaji to ensure that applicant does not function as Chairman of the Society until further orders.

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For vacation of the aforesaid order, the present interlocutory application has been filed.

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According to the applicant, the requisition notice of opposite party Nos.1 to 9 was addressed to both Chairman and Secretary. Secretary had handed over the requisition notice to the applicant on 04.08.2018. As per law, upon such requisition, special meeting is required to be held within 15 days. Accordingly, special meeting was scheduled on 17.08.2018. However, on that day a holiday was declared in the State of Assam on account of the demise of former Prime Minister Atal Bihari Vajpayee; therefore meeting could not be held on 17.08.2018.

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However, according to opposite party Nos.1 to 9, in the notice dated 15.08.2018, agenda of the meeting was not mentioned. It was merely stated that a special meeting would be held on 17.08.2018 at 11 am, which infact was not held.

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Mr. Borthakur, learned counsel for the applicant submits that Assistant Registrar of Cooperative Societies, Dhemaji may be directed to hold a special meeting of the Society so as to decide whether applicant has the majority support in the Board of Directors or not. Holding of meeting by opposite party Nos.1 to 9 on 17.08.2018 wherein applicant was ousted as Chairman of the Society was illegal as many Members of the Board of Directors are

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incompetent not only to hold office but even to continue as shareholder members of the Society.

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On the other hand, Mr. Payeng, learned counsel for opposite party Nos.1 to 9 submits that under the law, when a requisition of no-confidence is given, the Chairman is required to convene a special meeting within 15 days. If no meeting is held during this period, the Chairman stands automatically removed; question of holding fresh meeting or approval by the Assistant Registrar of Cooperative Societies, Dhemaji does not arise. As to objection raised regarding eligibility of some of the Directors, that is not an issue. Their membership or election was not questioned by anybody. Such objection besides being vague and devoid of particulars, cannot be raised collaterally in the present proceeding.

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Submissions made by learned counsel for the parties have been considered.

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On going through the pleadings and submissions of learned counsel for the parties, the following facts emerge. Nine members of the Board of Directors had expressed noconfidence on the applicant as Chairman of the Society. They, therefore, demanded holding of special meeting to discuss no-confidence motion against the Chairman. This was by way of requisition notice dated 02.08.2018 addressed to the Chairman and Secretary of the Society, which was received by the Secretary on 02.08.2018 itself. Secretary convened the meeting on 17.08.2018 but meeting could not be held. On the other hand, the requisitionists held a meeting on 17.08.2018 itself and removed the applicant as Chairman.

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In the light of the above factual background, the relevant legal provisions may now be adverted to.

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Section 43 of the 2007 Act deals with meeting of the Board of Directors. Sub-section (2) thereof provides that the President or Chairman shall be bound to call a special meeting of the Board of Directors within 15 days of the date of receipt of a written requisition signed by not less than one third of the Directors or from the Registrar or from the auditor. As per sub-section (3), if the President or Chairman fails to hold special meeting of the Board within the period specified i.e., 15 days, he shall cease to be the President or Chairman on the date of expiry of the specified period; in which case, the remaining members of the Board of Directors shall elect a new President or Chairman from amongst themselves. Consequence of

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such removal is mentioned in sub-section (4) thereof. If a person ceases to be President or Chairman under sub-section (3), he shall not be eligible to hold the office of President or Chairman for a period of three years from the date of such cessation.

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President and Vice-President of Cooperative Societies are dealt with in Section 36 of the 2007 Act. Sub-sections (4) and (5) thereof are relevant. As per sub-section (4), the Board of Directors may, by a resolution passed by three-fourth majority of the Directors present and voting at a meeting held for the purpose, remove the President or Vice-President. Such a meeting shall not be presided by the President or Vice-President as the case may be. Subsection (5) says that if the President is aggrieved by any resolution passed under sub-section (4), he may appeal to the Registrar within 30 days from the date of passing of such resolution whose decision thereon shall be final.

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As per Section 35 (2), Board of Directors shall consist of 15 numbers of Directors.

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A careful and conjoint reading of the relevant provisions of Sections 43, 36 and 35 would show that a requisition of no-confidence against the Chairman must be signed by not less than one third of the Directors of the Board which is five. In this case, requisition was by nine Directors. On receipt of such requisition, the Chairman must call a special meeting of the Board of Directors within 15 days. If the Chairman fails to hold the meeting within the specified period, he shall cease to be the Chairman on the date of expiry of the specified period. In such circumstances, the remaining members of the Board of Directors shall elect a new Chairman from amongst themselves. In the special meeting, the resolution of noconfidence must be passed by a three-fourth majority of the Directors present and voting. In the instant case, it appears that the notice for the special meeting was issued by the Secretary and not by the Chairman whereas requirement of Section 43 (2) is that it is the Chairman who is bound to call a special meeting within 15 days of receipt of written requisition. There is no calling of special meeting by the Chairman. Therefore, till 17.08.2018 atleast from the materials on record, there is no notice issued by the Chairman. On the other hand, in the meeting held by opposite party Nos.1 to 9 on 17.08.2018, all the nine members present had voted against the applicant.

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In such circumstances, Court is of the view that no case has been made out for

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vacating the interim order. However, as already noticed above, under sub-section (5) of Section 36 if the President or Chairman is aggrieved by any resolution of no-confidence adopted against him, he may appeal to the Registrar of Cooperative Societies, Assam within 30 days from the date of passing of such resolution and the decision of the Registrar of Cooperative Societies shall be final.

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In such circumstances, without vacating the interim order and notwithstanding the fact that 30 days had lapsed since adoption of resolution by opposite party Nos.1 to 9 on 17.08.2018 removing the applicant from the office of Chairman of the Society, liberty is granted to the applicant to file appeal before the Registrar of Cooperative Societies, Assam against his removal. If such an appeal is filed within 30 days from today, the same may be considered by the appellate authority i.e., Registrar of Cooperative Societies in accordance with law. Whatever decision is taken by the appellate authority, the same shall be communicated to the parties.

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In the light of the above, both the interlocutory application and the writ petition are disposed of.

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JUDGE

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Biplab

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Comparing Assistant

Sri Bidyadhar Doley (Madhab) v. Nilakanta Daflari and 13 Ors.

Case brief

What is this about?

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Sri Bidyadhar Doley (Madhab) v. Nilakanta Daflari and 13 Ors.

Case brief

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What did the court decide?

What the court decided

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