Prakash Das vs State Of Assam And 5 Ors.

Heard Mr. MK Choudhury, learned Senior Counsel assisted by Mr. A Barkataki, learned counsel for the petitioner. Also heard Dr. B Ahmed,

learned Standing Counsel, Cooperation Department appearing on behalf of the respondent No. 4, Mr. RK Bora, learned counsel for the respondent

No. 6, Mr. BU Laskar, learned counsel for the respondent No. 5 and Mr. TC Chutia, learned Additional Senior Government Advocate appearing on

behalf of the respondents No. 1, 2 and 3.

The present petitioner is a member of the respondent No. 5, Bura Buri Samabai SamityLimited. He is aggrieved by the illegal means adopted by the

respondent No. 6 while enlisting himself amongst the members of the society and consequently being successful in the election held on 12.05.2018 for

the Board of Directors of the society. The said election was given approval by the respondent No. 4, the Assistant Registrar of Cooperative Society

on 22.05.2018. The respondent No. 6 came out as the 5th ranked candidate while the present petitioner was ranked as 9th candidate resulting failure

on the part of the petitioner to secure himself among the 8 (eight) number of seats for the first part of the Board of Directors. The respondent No. 4

also failed to conduct and complete the enquiry after the said acts and deeds of respondent No. 6 were brought to the notice of the respondent No. 4

vide complaint dated 23.05.2018 even after conducting personal hearing by the said respondent No. 4 on 28.05.2018. Accordingly, a writ for

mandamus with a direction to the respondent No. 4 to make an enquiry into the allegations put forward by the petitioner against the respondent No. 6

and for passing an appropriate order after the enquiry, a writ setting aside the membership of the respondent No. 6 from the Society and a direction

refraining the respondent No. 5, Society to start and hold the process of election to the post of President and Vice-President of the Society. Upon

motion, vide order dated 01.06.2018 this court was satisfied to direct not to hold the election for the post of President/ Vice-President and for non-

holding of the election for the aforesaid post in terms of the said order no adverse consequence would ensue for the members of the Board of

Directors. The respondents after completion of service, more specifically, the respondents No. 5 and 6 filed their respective affidavit-in-opposition and

at the admission hearing stage this matter is taken up for its disposal.

On perusal of the writ petition and the annexures it is seen that the respondent No. 6through his application sought for his inclusion as the member

of the Samity claiming himself to be the son of Late Abdul Suban who was a member of the Society and after the death of his father, the said post of

membership was lying vacant and accordingly sought for his inclusion as the eligible son of the said deceased Abdul Suban. In support of the said

claim, the Gaon Bura vide his certificate dated 27.04.2013 certified that the respondent No. 6, son of Abdul Suban is an inhabitant of village

Bamunabari under Pakaria mouza. The respondent No. 6 also submitted his Voter Identity Card wherein the relative’s name has been shown as

Suban Ali. On the basis of the said application, the respondent No. 6 was inducted as the member of the said Society and while enjoying the said

status, the respondent No. 6 by way of an application sought for correction of his father’s name shown in the voter’s list of the Samity thereby

striking out the name of Abdul Suban, his alleged father and introduce the name of Late Taher Ali as his father. In support of the said claim, the

respondent No. 6 also submitted Voter Identity Card wherein the name of the father has been shown as Taher Ali.

The respondent No. 5, Society decided to hold its election for electing the member ofthe Board of Directors. The respondent No. 6 filed his

nomination on 02.05.2018 which was accepted and the respondent No. 6 was allowed to contest. In the nomination form, the name of the father of the

respondent No. 6 was shown as Late Suban Ali and his membership serial number was shown as 2377. The copy of the said nomination form is also

annexed in this writ petition.

The election was held on 12.05.2018 and the results were declared wherein therespondent No. 6 secured 753 votes and came out as the 5th ranked

holder while the petitioner secured 569 votes and came out as the 9th ranked holder thereby failing to secure place amongst 8 (eight) designated post

of Directors. After the results were declared on 17.05.2018, the results along with the resolution of the Society for constituting the Board of Directors

amongst the newly elected members were forwarded to the respondent No. 4 for his approval.

On 21.05.2018, one Md. Keramat Ali sought for his inclusion as one of the members ofthe said Society in place of his deceased father Late Suban

Ali and in support of his claim he also placed voters’ list. On 22.05.2018, the respondent No. 4, the Assistant Registrar of the Cooperative Society

(ARCS) gave his approval to the Society to form its Board of Directors. On the other hand, the petitioner after coming to know about the illegal acts

committed by the respondent No. 6, filed a complaint before the respondent No. 4 on 23.05.2018 requesting him to investigate the matter and for

necessary action against the respondent No. 6. The respondent No. 4 on 24.05.2018 asked the petitioner to be present in the office of the respondent

No. 4 on 28.05.2018 for personal hearing against the complaint dated 23.05.2018. The personal hearing took place and all the necessary documents

were placed before the said respondent No. 4 but the said complaint was not disposed of for which the petitioner apprehending that the respondent

No. 6 may contest for the post of President/ Vice President, has filed this writ petition. It would not be out of place to mention here that the petitioner,

after the personal hearing was concluded on 28.05.2018, filed an FIR on 28.05.2018 before the OC, Mayong Police Outpost against the respondent

No. 6.

Mr. Choudhury, learned Senior Counsel, submits that the act of claiming to be the sonof Late Suban Ali alias Abdul Suban by the respondent No. 6

is itself an act with an intent to play fraud on the Society and its members. The discovery of the said fraud was on the basis of the act of the

respondent No. 6 himself wherein he claimed himself to be the son of Taher Ali. Had there been no application for inclusion of Keramat Ali as the

member of the said Society in place of his father, Late Suban Ali, the fraudulent intention and the act leading to perpetration of the said fraud could not

have been detected. Under such circumstances, Mr. Choudhury submits that the membership so obtained by the respondent No. 6 fraudulently must

be cancelled and his election to the post of the Director must also be declared null and void.

The respondent No. 6 filed his affidavit-in-opposition wherein he stated that he did notfill up his nomination paper except putting his signature but he

could not detect that his father’s name was wrongly mentioned as Late Suban Ali. His father’s voter ID, relied as Annexure-5 to the writ

petition, must have been manipulated by some persons showing his father’s name as Suban Ali. To that effect, he has filed a complaint case

before the Chief Judicial Magistrate (CJM) and the same has been registered as CR Case No. 577/2018 pending disposal. It is further stated that Late

Abdul Suban alias Suban Ali was the uncle of respondent No. 6. Late Abdul Suban alias Suban Ali during his life time made a declaration before his

sons, relatives that after his death the respondent No. 6 be inducted as member of the said Cooperative Society in his place as the respondent No. 6

hails from a very poor family. After the death of Abdul Suban in the year 2000, the respondent No. 6 was inducted as the member of the said Society

in the year 2013. None of the legal heirs of the Abdul Suban objected because of the last wish of late Abdul Suban. Rather, one of the sons of Abdul

Suban sworn an affidavit before the Notary Public at Morigaon expressing no objection in the event the respondent No. 6 used their deceased

father’s voter serial No. 2377 of the Society.

Mr. Bora, the learned counsel for the respondent No. 6, submits that the wrongrecording of the name of the father of the respondent No. 6 cannot

disqualify the membership of the respondent No. 6 inasmuch as once the said error was detected the respondent No. 6 sought for rectification of the

said error by seeking to introduce the name of the father, Taher Ali. There was no fraudulent intention inasmuch as it is the case of the respondent

No. 6 that as per the last wishes of Late Abdul Suban he used the membership serial number standing in the name of said Abdul Suban. Further, such

wrong entry cannot debar the respondent No. 6 from contesting the election nor there is any bye-law adopted on the basis of which necessary action

could be initiated by the ARCS, the respondent No. 4 Under such circumstances, Mr. Bora submits that the writ petition lacks merit. Â

Dr. Ahmed, on the other hand, submits that the fact the respondent No. 6 used thename of Late Abdul Suban as his father instead of Late Taher

Ali is an admitted position inasmuch as the respondent No. 6 by swearing an affidavit in this writ petition has stated those facts and under such

circumstances, the membership of the respondent No. 6 is to be cancelled. Regarding the power of the respondent No. 4 it is submitted that the said

ARCS passed various orders stage-wise during the process of the election and under such circumstances, the complaint lodged before him by the

petitioner cannot be decided as the voter list had the approval of the said respondent No. 4. Further he submits that once the membership of the

respondent No. 6 is declared void ab initio the consequence will follow automatically thereby leading to ouster of the respondent No. 6 from the

Society and there is no point further in permitting the respondent No. 6 to contest the election for the post of President/ Vice President.     Â

I have given my considered thought keeping in view the submission of the learnedcounsel for the parties. From the affidavit-in-opposition of the

respondent No. 6 it is admitted that as per the last wish of Late Abdul Suban, he used the voter serial number 2377 which stood in the name of said

Abdul Suban. This itself goes to show that the fact of introducing the name of Late Abdul Suban in the membership application is intentional. The

respondent No. 6 disputed the nomination form but he failed to dispute or deny the application for inclusion of his name in place of Late Abdul Suban

(Annexure-3). On perusal of the said Annexure-3 it is seen that he identified himself to be the son of Late Abdul Suban. Not only that the Gaon Burah

also issued the certificate showing the name of the father of the respondent No. 6 as Abdul Suban. After publication of the voter’s list, the

nomination form dated 02.05.2018 was filed wherein also the name of the father has been shown as Late Abdul Suban. It would not be out of place to

mention here that the petitioner had already lodged FIR in the Mayong Police Outpost thereby claiming that the respondent No. 6 played fraud on the

Society, however, no further details is provided in the writ petition with respect to registration of any case. The admission on the part of the respondent

No. 6 as pointed out by Dr. Ahmed can very well be considered inasmuch as the said facts are supported by affidavit. Keeping in view the said

admitted fact, I am of the opinion that prima facie a case leading to the wrongful entry as a member of the said Society is very much apparent.

Whether the same amounts to fraudulent act or not that can be decided by taking necessary evidence or causing detailed enquiry. There are

allegations against the respondent No. 4, ARCS that he has failed to give any decision with regard to the representation of the present petitioner.

Accordingly, in my opinion it would be proper to direct the Registrar, Assam Cooperative Societies to cause a detailed enquiry to the representation of

the petitioner which accordingly I do and till the completion of the said enquiry and the final decision of the Registrar, Assam Cooperative Societies,

the election for the post of President and Vice President shall not be held and for such non-holding of election for the aforesaid posts, no adverse

consequence(s) shall ensue so far the members of the Board of Directors are concerned. The said enquiry by the Registrar, Assam Cooperative

Societies be completed within a period of 1 (one) month from the date of receipt of the copy of this order along with the copy of the writ petition and

the affidavit-in-opposition of the respondents filed in this writ petition and all enclosures annexed thereto. The Registrar, Assam Cooperative Societies

shall cause the enquiry independently without being influenced by any of the findings in this order giving due notice to the parties. Accordingly, this

writ petition is allowed with the aforesaid direction.