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Hiran Kr. Nath & Others v/s Rafiqul Islam & Others

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

    Case No. WA 83 of 2018

    Decided On, 15 February 2019

    At, High Court of Gauhati


    For the Petitioner: M.U. Mahmud, Advocate. For the Respondents: R1 to R10, N. Dutta, Senior Advocate.

Judgment Text

A.S. Bopanna, C.J.

Heard Mr. M.U. Mahmud and Ms. K. Gogoi, learned counsel for the appellants. Also heard Mr. G. Talukdar and Mr. M. Das, learned counsel for private respondents.

The appellants are before this Court assailing the order dated 28.2.2018 passed by the learned Single Judge in W.P.(C) No.1121 of 2018. Through the said order, the learned Single Judge, in fact, has passed an innocuous order indicating that the authorities are required to perform their statutory duties in accordance with the Assam Cooperative Societies Act, 2007 and, in that light, has directed that the election relating to Batadraba Satra S.S. Limited be completed after initiating the process within three days from the date of the order. The appellants claiming to be aggrieved are before this Court in this appeal.

It is to be noted at the outset that the writ petitioners therein were some of the members of the Society, while the appellants herein are also the members of the said Society. However, the appellants herein were not arrayed as parties to the writ petition. Despite the said position, since the appellants claim to be aggrieved by the ultimate conclusion reached by the learned Single Judge, they are before this Court. To contend that they are entitled to maintain the instant appeal and put forth their contentions, the learned counsel for the appellants would point out that the appellants are the persons who had raised grievance with regard to inappropriate voters’ list that had been published in respect of the Society in question. In that circumstance, when the Registrar of Cooperative Societies had directed the postponement of the election and an enquiry to be conducted so as to rectify the voters’ list, the appellants are to be permitted to put forth their contention as otherwise they would be prejudiced if the order of the learned Single Judge is implemented.

Having taken into consideration this aspect of the matter, we have heard the learned counsel for the appellants exhaustively and, in that light, are considering the grievance as put forth in this appeal though the appellants were not parties to the original proceedings.

The case as put forth on behalf of the appellants by the learned counsel is that the appellants herein had brought to the notice of the Deputy Commissioner the defects in the voters’ list inasmuch as certain persons though alive, were shown to be dead and some of the voters who were not the residents of the locality, were included as the members. In that regard, the Registrar of Cooperative Societies having taken note of the report of the Deputy Commissioner had, through the order dated 20.1.2018 directed the ARCS, Nagaon to enquire into the matter and find out whether there is any defect in the voters’ list. In that light, when the Registrar of Cooperative Societies had directed the enquiry and, in the meantime, had postponed the election, the learned counsel would submit that in such circumstance when the competent authority under the Act had taken steps to ensure that an appropriate voters’ list is maintained before the election are held, the order passed by the learned Single Judge based only on the contentions as put forth by the private respondents herein would not be justified. In order to contend that certain of the persons who are dead were shown in the voters’ list and the persons who are not the residents of the area were also indicated therein, the learned counsel has referred to the list as prepared by the appellant and the same is annexed at Annexure-3 to the writ appeal papers. In addition, the learned counsel has sought to rely on the report said to have been submitted by the ARCS pursuant to the direction issued by the Registrar of Cooperative Societies, which report is produced with the affidavit-in-opposition at Annexure-A to I.A. (Civil) No.1580 of 2018. It is referred to contend that on such enquiry, it has been noticed that certain of the persons who are alive are shown as dead in the voters’ list. It is also pointed out that the ARCS, Nagaon has indicated that more time is required to carry out a detail enquiry. In that light, he contends that in a circumstance where the voters’ list is, prima facie, shown to be defective, the competent authority was justified and without reference to this aspect, the direction issued by the learned Single Judge would not be justified.

Learned counsel for the private respondent would, however, seek to sustain the order passed by the learned Single Judge. It is pointed out that when the process of election has been set in motion and notice for AGM had already been issued, the election is required to be conducted in the manner as provided under the Act. Any interference at this stage is not justified. In that light, it is contended that when such aspect is kept in view, the provisions in the Assam Cooperative Societies Act is to achieve the object that election is to be conducted within time frame, the order passed by the learned Single Judge does not call for interference.

In the light of the rival contentions, the issue that is required to be decided is as to whether in the circumstance as contended by the appellants herein, even if it is accepted at this stage that certain defects are pointed out in the voters’ list, what is necessary to taken note of is that in the process of election, the Secretary of the Society had issued a notice dated 10.12.2017 (Annexure-D1) whereby the voters’ list has been published and objections in writing had been called indicating the last date for such objection to be submitted as 25.12.2017. There is no document brought on record to indicate that the appellants had filed the objection to the voters’ list within the time frame as stated therein. Learned counsel for the appellants no doubt would seek to contend that there was no wide circulation of the notice. Such contention, in any event, cannot be accepted in a circumstance when the names of the appellants were included in the voters’ list and if the case as projected by them in the present form is kept in view. In that background, what is necessary to be taken note of is to the order passed by the Registrar of Cooperative Societies dated 20.1.2018 on which strong reliance has been placed by the learned counsel for the appellant. It is no doubt true that through the said order, the Registrar in exercise of the powers under Section 41(1) of the Act has sought to postpone the election process in order to enable an enquiry to be conducted with regard to the voters list. Though such action is taken by the Registrar of Cooperative Societies, what is necessary to be taken note is that even to arrive at such conclusion, he has not recorded a prima facie satisfaction with regard to the error in the voters’ list. No doubt he has directed ARCS, Nagaon to hold an enquiry into the matter, such enquiry at that belated stage is not justified without prima facie satisfaction being reached. Therefore, in a circumstance, where the Registrar of Cooperative Societies has not recorded such satisfaction, but has instead ordered for postponement of election process, the same cannot be made a basis justifying the action of postponement and question the order passed by the learned Single Judge.

In that light, when the election process had been set in motion and, in that view, the learned Single Judge was of the opinion that the process is to be completed in accordance with law and a direction was issued to complete the process within a time frame, as indicated, we would not be justified in interfering with such order. What is also to be taken note is that by the time the learned Single Judge had passed the order, the last date for filing of nomination was also completed on 11.1.2018. That apart, the authorities in compliance of the direction issued by the learned Single Judge had also notified the calendar of events through the notice dated 16.3.2018. Th

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erefore, when the process of election was set in motion by the notice for the second time, interfering with the process at this stage, in any event, would not be justified. Further, even if the allegation as made by the appellants are accepted to be correct, the appellants are not left without any remedy since they can assail the action subsequent to the AGM being conducted and the election process being completed, to which extent the appellants would have the liberty in accordance with law. In view of our conclusion, the competent authority shall now issue a fresh calendar of events through a notice for the AGM and complete the process as expeditiously as possible, but not later than four weeks from this day. Needless to mention that in view of the disposal of the appeal, the interim order stands vacated. The appeal is, accordingly, disposed of.