Disposed

Nilakanta Baruah and 12 Ors. v. the State of Assam and 7 Ors.

Gauhati HC7 Apr 2022WP(C)/2568/2022

Case brief

AI extract

What is this about?

This order disposed of a writ petition challenging an order requiring the restoration of elections due to non-holding of AGM. The Court held that exemption under exceptional circumstances is fraught with discretion and directions petitioners to submit a representation to the Government for consideration.

What did the court decide?

Petitioners directed to submit a representation to the State Government within seven days for the authority to consider exemptions and pass a speaking order within two weeks.

Nilakanta Baruah and 12 Ors. Vs the State of Assam… — Service and Employment | Gauhati HC (2022)

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GAHC010071022022

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

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Case No. : WP(C)/2568/2022

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NILAKANTA BARUAH AND 12 ORS. C/O LT. NABIN CH. BARUAH RESIDENT OF VILL. KEOTPARA P.O. JANARAM CHOWKA P.S. MANGALDOI, DISTRICT - DARRANG, ASSAM PIN - 784529

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2: BHARAT SAHARIA S/O LATE SANTIRAM SAHARIA AGED ABOUT 60 YEARS RESIDENT OF VILL. KAMEIPARA P.O. JALJALI P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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3: MD. SAHIL ALI S/O LATE SAFAR ALI AGED ABOUT 62 YEARS RESIDENT OF VILL. GAKHIR KHOWA PARA P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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4: MRS. SONESWARI DEVI DAUGHTER OF MUKTARAM SARKA AGED ABOUT 55 YEARS RESIDENT OF VILL. KAMEIPARA P.O. JALJALI

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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5: GOLAK CH. DEKA S/O LATE KUHURAM DEKA AGED ABOUT 42 YEARS RESIDENT OF VILL. NA-HOWLY P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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6: MD. HAFIJAR RAHMAN S/O LT. OMAR ALI AGED ABOUT 53 YEARS RESIDENT OF VILL. NA-HOWLY P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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7: BIPIN CH. DEKA S/O LATE BENUDHAR DEKA AGED ABOUT 54 YEARS RESIDENT OF VILL. DAHI NAGAON P.O. DAHI NAGAON

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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8: BHADRAKANTA NATH S/O JADAB CH. NATH AGED ABOUT 46 YEARS RESIDENT OF VILL. KABIKARA P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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9: GUNESWAR HAZARIKA SON OF LATE HEMCHANDRA HAZARIKA

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RESIDENT OF VILL. KABIKARA P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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10: DHANESWAR DEKA S/O LATE ANGARU DEKA AGED 57 YEARS RESIDENT OF VILL. KEOTPARA P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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11: TILAK DEKA S/O LATE KATIRAM DEKA AGED ABOUT 68 YEARS RESIDENT OF VILL. BAR ATHIABARI P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529 12: MD. MOINUL HOQUE S/O LATE MAZIBUDDIN AHMED AGED ABOUT 57 YEARS RESIDENT OF VILL. NA-HOWLY P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 784529

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13: RATUL DEKA S/O NANDIRAM DEKA AGED ABOUT 52 YEARS

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RESIDENT OF VILL. KEOTPARA P.O. JANARAM CHOWKA

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P.S. MANGALDOI DISTRICT - DARRANG ASSAM PIN - 78452 VERSUS THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM, COOPERATION DEPARTMENT, DISPUR, GUWAHATI-6. 2:THE ADDITIONAL CHIEF SECRETARY GOVT. OF ASSAM CO-OPERATION DEPARTMENT DISPUR GUWAHATI-6 3:THE REGISTRAR OF CO-OPERATIVE SOCIETIES ASSAM KHANAPARA GUWAHATI-781022 4:THE ZONAL JOINT REGISTRAR OF CO-OPERATIVE SOCIETY TEZPUR ZONE TEZPUR PIN - 784001 5:THE DISTRICT DEPUTY REGISTRAR OF COOPERATIVE SOCIETIES DARRANG DIST- DARRANG ASSAM PIN-784145 6:THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES MANGALDOI ASSAM PIN-784105 7:THE DEPUTY COMMISSIONER DARRANG P.O. AND DISTRICT- DARRANG ASSAM PIN-784145 8:DINESH BASUMATARY

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SR. INSPECTOR/AUDITOR

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OF COOPERATIVE SOCIETIES

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OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES MANGALDOI

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ASSAM PIN-78410

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Advocate for the Petitioner : MR. A SARMA

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Advocate for the Respondent : SC, CO OP

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 07.04.2022

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Heard Mr. A. Sarma, learned counsel appearing for the petitioners; Ms. S. Bakt, learned counsel appearing on behalf of Mr. S.K. Talukdar, learned Standing Counsel, Co-operation Department for the respondent nos. 1 to 6; and Mr. B.J. Talukdar, learned Additional Senior Government Advocate, Assam for the respondent no. 7.

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The petitioners, 13 [thirteen] in nos., were members in the Board of Directors of Dahi Samabai Samity [‘the Society’, for short], a registered cooperative society under the provisions of the Assam Cooperative Societies Act, 2007 [‘the Act, 2007’, for short]. The election to the Board of Directors of the Society was held on 26.08.2017.

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The petitioners are aggrieved by an order dated 01.04.2022 passed by the respondent no. 4 whereby the said authority in exercise of the powers conferred under Section 41 [6] of the Act of 2007, as amended, to manage the affairs of a number of cooperative societies including the Society, has appointed a departmental officer [the respondent no. 8] each against each of such cooperative societies and such departmental officer has been given the task to hold AGM/Election within 90 [ninety] days from the date of issue of the said order. The order has reflected that the same has been passed pursuant to a decision taken in a

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meeting by the Government and by taking into consideration the provisions of Section 39 and Section 41 [2] of the Act, 2007, as amended.

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Mr. Sarma, learned counsel for the petitioners has submitted that due to the emergence of Covid-19 Pandemic during the years, 2020 and 2021, the Society could not hold its AGM during the period though a number of resolutions were taken by the Board of Directors of the Society to hold the AGM. But the holding of the AGM could not be made possible due to the SOPs operating at that point of time and due to denial of permission by the district administration departmental authorities. It was in such situation, the AGM of the Society was not held and no fault should have been attributed to the Board of Directors of the Society. Mr. Sarma, learned counsel for the petitioners has submitted that pursuant to the order dated 01.04.2022, the Officer appointed to manage the affairs of the Society has not taken over the charge of the affairs of the Society as on date. Mr. Sarma, learned counsel for the petitioners has also submitted that in case of a number of other cooperative societies, situated similarly to the Society, where the petitioners were the members in the Board of Directors, the State Government in exercise of the powers conferred under Section 130A of the Act, 2007, as amended, has exempted them from the operation of Section 39 and Section 41 of the Act, 2007, as amended, for a period of 6 [six] months by a notification no.COOP.328/2021/76 dated 01.04.2022. While extending the benefit to those cooperative societies, the respondent authorities by the impugned order have meted out a differential treatment to the petitioner society, which has resulted in arbitrariness.

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Ms. Bakt, learned counsel, Cooperation Department has submitted that since the Board of Directors of the Society has already been dissolved by operation of law contained in the statutory provisions in Section 39 and Section 41 of the Act, 2007, it is for the Government to consider as to whether the powers conferred under Section 130A of the Act of 2007, as amended, is to be exercised in respect of the Society in question. As it is open for the State Government in exceptional circumstances like pandemic to exempt any registered cooperative society from the rigours of the provisions of Section 39 and Section 41[2] of the Act, 2007, as amended, by a general or special order, it would be appropriate for the petitioners to submit

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a representation before the State Government to consider their grievances regarding differential treatment and also to make a prayer for exemption from the rigours of Section 39 and 41 [2] of the Act, 2007.

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Section 35 of the Act, 2007 has prescribed for a Board for every cooperative society. As per Section 35 of the Act, 2007, there shall be a Board for the management of every cooperative society registered under the Act, 2007 and the Directors shall be elected in accordance with the provisions of the bye-laws. The management of every cooperative society constituted in accordance with the provisions of the Act, 2007 and the bye-laws vests in the Board. Section 31 of the Act has prescribed the term of the Board as 5 [five] Cooperative Years. It has been prescribed in Section 32 of the Act, 2007 that the Board may, at any time, call a General Meeting of the members of the cooperative society. It has further been stipulated that one General Meeting in every Cooperative year must be convened by the Board. Sub-section [1] of Section 42 has provided for the term of Directors and according to the provision therein, the tenure of office of elected members of the Board and its office bearers shall be five years from the date of election and the tenure of office bearers shall be co—terminus with the tenure of the Board. Section 41 [2] has laid down that the election of Directors to a Board shall be conducted before the expiry of the term of the Board so as to ensure that newly elected members of the Board assume office immediately on the expiry of the term of the members of the out-going Board. Sub-section [4] of Section 41 has prescribed that where a Board fails to arrange for holding election of the Directors or delegates, as the case may be, before the expiry of the term of their office in accordance with the Act, 2007 and bye-laws, all Directors shall cease to be Directors on the expiry of the period specified in Section 42 [1]. It has been stipulated in sub-section [6] of Section 41 that where a Board fails to arrange for holding election before the expiry of the term of the Board or delegates or where there are no Directors remaining on the Board, the Registrar of Cooperative Societies shall convene a General Meeting by appointing an Officer of the Cooperation Department for constitution of the Board within 90 [ninety] days from the date of such appointment and the officer so appointed shall perform all functions of the Board during the said period of ninety days at the cost of the society. Section 39 of the Act, 2007 reads as

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under :

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“39. Annual General Meeting.— A general meeting to be termed as Annual General Assembly of a registered cooperative society shall be held at least once in every Cooperative year within a period of six months of close of the financial year to transact the business as provided in this Act. The Board shall automatically stand dissolved for not holding Annual General Meeting in accordance with the provisions of the Act and bye-laws within six months from the expiry of every financial year.”

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By the Assam Cooperative Societies [Amendment] Act, 2021, a new Section i.e. Section 130A has been inserted in the Assam Cooperative Societies Act, 2007. For ready reference, the newly inserted Section 130A is quoted hereunder :

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“130A. Exemption of certain provisions by general or special order:- The State Government, in exceptional circumstances like pandemic may by general or special order, exempt any registered cooperative society or class of registered cooperative societies from the operation of the provisions of Section 39 and Section 41(2) of this Act, for such a period not exceeding six months at a time which shall not further be extended for more than another six months, as may be specified in the said order or may direct that such provisions shall apply to such Society with such modifications and for such a period either from a prospective or retrospective date as may be specified in the order as per the need of the situation.”

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From the provisions of the newly inserted Section 130A of the Assam Cooperative Societies [Amendment] Act, 2021, it is seen that in exceptional circumstances like pandemic, the State Government may exempt any registered cooperative society from the operation of the provisions of Section 39 and Section 41[2] of the Act, 2007 for such a period not exceeding 6 [six] months at a time which shall not further be extended for more than another 6 [six] months, by passing a general order or a special order.

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As per Section 1[3] of the Assam Cooperative Societies [Amendment] Act, 2021, the provision of newly inserted Section 130A is deemed to have come into force on 25.03.2020. By the newly inserted Section 130A, the power has been vested in the State Government to

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exempt any registered cooperative society or class of registered cooperative societies from operation of the provisions of Section 39 and Section 41[2] of the Act, 2007 by passing a general order or a special order. It further provides that such exemption can be for a period not exceeding 6 [six] months at a time and it will not further be extended for more than another 6 [six] months at a time. The general order or the special order can either be from a prospective or a retrospective date as may be prescribed in the order as per the need of the situation.

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The condition precedent for passing such a general order or special order is existence of exceptional circumstances like pandemic. Thus, in view of the newly inserted Section 130A by the Assam Cooperative Societies [Amendment] Act, 2021, it is for the State Government to consider the case of these writ petitioners herein by taking into purview the fact situation obtaining in their case and to consider as to whether any exceptional circumstances existed/exist in their case to provide exemption to the Society from the operation of the provisions of Section 39 and Section 41[2] of the Act.

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Having considered the submissions of the learned counsel for the parties; the relief sought for by the Society to exempt it from the operations of Section 39 and Section 41[2] of the Act, 2007; and the powers available to the State Government under Section 130A of the Act, 2007 to consider the case of a co-operative society like the Society herein, to exempt it from the rigours of Section 39 and Section 41[2] of the Act, 2007, this Court deems it appropriate to order that the petitioners who were the members of the Board of Directors of the Society, shall submit a representation before the respondent no. 2 within a period of 7 [seven] days from today on the aforesaid aspects, discussed above, and in the event such a representation is filed, the respondent no. 2 shall consider the same by taking into consideration the reasons the petitioners have provided as explanations for which the petitioners were not able to hold or did not hold the AGM/Election during the stipulated period together with the provisions of Section 130A read with Section 39 and Section 41[2] of the Act, 2007 and shall thereafter, dispose of the same by passing a speaking order within a period of two weeks from the date of receipt of such representation. The order dated 01.04.2022 passed by the respondent no. 4 shall abide by the speaking order to be passed by

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the respondent no. 2.

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The writ petition stands disposed of in the above terms.

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JUDGE

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Comparing Assistant

Nilakanta Baruah and 12 Ors. v. the State of Assam and 7 Ors.

Case brief

What is this about?

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Nilakanta Baruah and 12 Ors. v. the State of Assam and 7 Ors.

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