Calcutta High Court (Appellete Side)
Sri Ashok Bandyopadhaya vs The State Of West Bengal And Others on 13 September, 2013
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
THE HONB'LE MR. JUSTICE BISWANATH SOMADDER
W.P. No. 11640 (W) of 2013 Sri Ashok Bandyopadhaya
-Versus-
The State of West Bengal and Others For the Petitioner : Mr.Bikash Ranjan Bhattacharya, Sr.Advocate, with Mr.Dhiman Kumar Sengupta & Mr.Samim Ahammed, Advocates For the State : Mr. Bimal Chatterjee, Advocate General, with Mr.Sailaja Nanda Bhattacharjya, Mr.Subrata Talukdar, Mr.Sadhan Kumar Halder & Mr. Supratim Dhar, Advocates Judgment on : 13/09/2013 Biswanath Somadder, J. - The writ petitioner is a member of the West Bengal Cooperative Bank Limited, which is a registered cooperative society. The petitioner was elected as Chairman of the Board of Directors of the said cooperative society and has filed the instant writ petition praying, inter alia, for the following reliefs:
" a) A writ of declaration declaring the West Bengal Co-operative Societies (Amendment and Validation) Act 2013 as bad in law and void;
b) A writ of in the nature of mandamus by declaring that the impugned Act of 2013 (Bill 9 of 2013) is repugnant to the 97th Amendment of the Constitution of India and thus, unconstitutional;
c) A writ of in the nature of mandamus by declaring that the state legislature acted malafide in passing the West Bengal Cooperative Societies (Amendment and Validation) Bill of 2013 being Bill 9 of 2013."
The genesis of this matter lies in a judgment rendered by this Court on 17th October, 2012 in a writ petition bearing no. WP 4009 (W) of 2012 (The West Bengal State Co-operative Bank Ltd. & Anr.
-vs - The State of West Bengal & Ors.). The issue in that matter related to introduction of certain new provisions into the West Bengal Cooperative Societies Act, 2006 (hereinafter referred to as the Principal Act) by way of amendment. The Principal Act was amended by the West Bengal Cooperative Societies (Amendment) Act, 2011 (hereinafter referred to as the Amendment Act), which obtained assent of the Governor and was published by way of a notification dated 30th January, 2012. Later, by another notification dated 6th February, 2012 issued by the Government of West Bengal and published in Kolkata Gazette, the Amendment Act came into force.
The moot question that came up for consideration in that matter was whether certain provisions of the Amendment Act were repugnant to the legal fiction introduced under the non obstante provision in the Repeal and Savings clause, as contained under section 6 of the Principal Act and ultra vires the Constitution of India and also contrary to the provisions of the Constitution (11th Amendment) Bill, 2009, which later on became the Constitution (Ninety Seventh Amendment) Act, 2011, upon its receiving Presidential assent on 12th January, 2012 and came into force on 15th February, 2012.
After a detailed examination of the issue, this Court allowed the said writ petition with the following direction :
"For reasons stated above, sub-clause (ii) of clause (a) of section 12 of the Amendment Act is held to be repugnant to the provision of sub- section (2) of section 6 of the Principal Act, to the extent it seeks to reduce the tenure of the Boards of Co-operative Societies to thirty six months from sixty months, as originally provided under clause
(a) of section 36 of the Principal Act and is further held to be ultra vires Article 14 of the Constitution of India. Sub-clause (ii) of clause (a) of section 12 of the Amendment Act is, therefore, liable to be struck down and is accordingly struck down.
Consequently, the Board of writ petitioner no.1, which came into effect from 24th November, 2009, shall continue in office for a period of sixty months to be computed from that date, subject of course, to all other provisions of law, as applicable for its continuance.
The writ petition stands allowed
accordingly."
Consequently, the State of West Bengal preferred an appeal against the judgment and order dated 17th October 2012, before a Division Bench of this Court. The said appeal was registered as AST 339 of 2012 and was filed on 03/12/2012. Subsequently, the State Government sought leave to withdraw the appeal and the Division Bench was pleased to pass an order dated 17th January, 2013 to the effect that the appeal stood withdrawn for non prosecution. The Government of West Bengal, thereafter, promulgated an Ordinance, namely, West Bengal Cooperative Societies (Amendment and Validation) Ordinance, 2013 (West Bengal Ordinance-I of 2013) (hereinafter referred to as the "Ordinance") on 04th February, 2013. By the said Ordinance of 2013, the State Government dissolved the elected Boards who were elected under section 27(8) of the West Bengal Co-operative Societies Act, 1983. The Ordinance was challenged before this Court in a writ petition, being WP 3829 (W) of 2013, which was filed on 6th February, 2013.
During pendency of that writ petition - when hearing was in progress, the West Bengal Co-operative Societies (Amendment and Validation) Bill 2013 i.e., Bill 9 of 2013 (hereinafter referred to as the Bill), was introduced, which was passed by the West Bengal Legislative Assembly on 21st March, 2013. This prompted the writ petitioner herein, to file the instant writ petition, praying for such reliefs, as quoted hereinbefore.
During the course of hearing of the instant matter, the learned Advocate General, on 23rd April, 2013, submitted that the Bill, which was passed by the State Legislature, was still awaiting the assent of the Governor. On 30th April, 2013, the learned Advocate General handed over a photocopy of the West Bengal Act VI of 2013, The West Bengal Co-operative Societies (Amendment and Validation) Act, 2013 (hereinafter referred to as the Amendment and Validation Act of 2013), which was assented to by the Governor and first published in the Kolkata Gazette, Extraordinary, PART-III on 26th April, 2013.
The petitioner was granted leave to file a supplementary affidavit to bring the Amendment and Validation Act of 2013 on record in the instant proceeding, since a notification bringing it into effect, had already been handed up by the learned Advocate General.
It is the contention of the writ petitioner that the Amendment and Validation Act of 2013, which was notified on 26th April, 2013, is to operate with retrospective effect from 4th February, 2013. It is further contended by the writ petitioner that though the Amendment and Validation Act of 2013 was given effect from the date of promulgation of the Ordinance, by virtue of section 7 of the Amendment and Validation Act of 2013, all actions taken under the Ordinance have been validated while repealing the Ordinance. Although the West Bengal Cooperative Societies (Amendment and Validation) Bill, 2013 was passed by the State Legislative Assembly by replacing the Ordinance, the State authorities did not bring this fact to the notice of this Court during the course of hearing of WP 3829 (W)/2013, which again demonstrates the state's lack of bona fide.
It is also contended by the writ petitioner that the Amendment and Validation Act of 2013 was passed with a sole purpose to negate the judgment of this Court passed in WP 4009(W) of 2012 and appropriate order of declaration is required to be passed in the instant matter in order to declare the Amendment and Validation Act of 2013 as bad in law. The writ petitioner has also contended that the provisions of the Amendment and Validation Act of 2013 were repugnant to the provisions of the Constitution of India and as such, the same may be declared as ultra vires.
Learned senior counsel for the petitioner submitted before this Court that one of the points for consideration in the instant case would be whether the State Government, having withdrawn the appeal against the judgment and order of this Court dated 17th October, 2012, could take recourse to a legislative process to defy the binding effect of the judgment between the parties.
He also submitted that the sole purpose of the Ordinance followed by the Amendment and Validation Act of 2013 was to nullify the binding nature of the judgment and order of this Court dated 17th October 2012. The State could not demonstrate any other purpose for a greater public interest.
It was also specifically contended by him that the State has taken recourse to a legislative process to supersede the power of judicial review which was the basic structure of the Constitution. Even in the statement of Objects and Reasons in the Bill there was no whisper of the judgment and order of this Court declaring that the impugned Amendment Act of 2011 was ultra vires, which attempted to reduce the tenure of the Boards from sixty months to thirty six months.
Relying on Madan Mohan Pathak and Another vs. Union of India and Others reported in (1978) 2 SCC 50, he submitted that the factual scenario of the present case is quite similar to that case where the learned Single Judge had allowed a writ petition and issued a writ of mandamus and prohibition as prayed for by directing the Life Insurance Corporation of India to act in accordance with the terms of Settlement dated January 24, 1974 read with administrative instructions dated March 29, 1974 and to rescind or cancel the Circulars dated September 25, 1975, February 7, 1976 and March 22, 1976 and not to refuse to pay cash bonus to Class III and Class IV employees along with their salary for the month of April 1976, as provided by the Settlement read with the administrative instructions. Referring further to Madan Mohan Pathak's case, learned senior counsel for the petitioner submitted that a Letters Patent Appeal was preferred against the judgment of the learned Single Judge before a Division Bench of this Court, but in the meantime, the impugned Act, being the Life Insurance Corporation (Modification of Settlement) Act, 1976 had come into force and therefore, it was stated on behalf of the Life Insurance Corporation of India, being the appellant before the Division Bench, that there was no necessity for proceeding with the appeal and hence the Division Bench made no order in the appeal. The result was that the judgment of the learned Single Judge remained intact: with what effect was the matter that was considered by the Supreme Court in Madan Mohan Pathak's case.
Referring further to the said judgment he submitted that if by reason of retrospective alteration of the factual or legal situation, a judgment is rendered erroneous, remedy may be possible by way of appeal or by review, but so long as the judgment stands, it cannot be disregarded or ignored and it has to be obeyed. He further submitted that the Supreme Court, in Madan Mohan Pathak's case, was of the view that in any event, irrespective of whether the Life Insurance Corporation (Modification of Settlement) Act, 1976 was Constitutionally valid or not, Life Insurance Corporation was bound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 to Class III and Class IV employees.
He submitted that similar to the facts of Madan Mohan Pathak's case, the object of the Amendment and Validation Act of 2013 was only to take away the force of the judgment of this Court dated 17th October, 2012, whereby, sub clause (ii) of clause (a) of section 12 of the Amendment Act of 2011 was held to be repugnant to the provisions of sub-section (2) of section 6 of the Principal Act, to the extent it sought to reduce the tenure of the Boards of Cooperative Societies to thirty six months from sixty months, as originally provided under clause (a) of section 36 of the Principal Act and which was further held to be ultra vires Article 14 of the Constitution of India and was struck down accordingly. He submitted that the right conferred by the judgment independently was sought to be set aside upon introduction of the Ordinance and subsequently the Amendment and Validation Act of 2013, which amounted to trenching upon judicial power. He referred to paragraphs 3, 4, 5, 8, 9, 20, 22, 25, 27, 28, 31 and 32 of the judgment rendered by the Supreme Court in of Madan Mohan Pathak's case to buttress his submissions.
He, thereafter, referred to Cauvery Water Disputes Tribunal's case reported in 1993 Supp (1) SCC 96 and submitted that the object of the legislation not being bona fide, the same cannot be allowed to stand as it has the effect of overruling a judicial order passed by a Constitutional Court. He also submitted that had this Court not struck down sub-clause (ii) of clause (a) of section 12 of the Amendment Act, 2011, in its judgment and order dated 17th October, 2012, the State would not have any cause to issue the Ordinance followed by the Amendment and Validation Act of 2013. As such, he submitted that the Amendment and Validation Act of 2013, is an invalid piece of legislation.
He, thereafter, referred to State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others reported in (1983) 2 SCC 33 and submitted that no law can be made to destroy today's accrued Constitutional right by artificially reverting to a situation which existed earlier. While the legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws, but since the laws are made under a written Constitution, and have to conform to the dos and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. Since we are concerned with today's rights and not of yesterday's. A legislature cannot legislate today with reference to a situation that occurred twenty years ago and ignored the march of events and the Constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history.
Referring to S.R.Bhagawat and Others Vs. State of Mysore reported in (1995) 6 SCC 16, he submitted that the Supreme Court has reiterated in the said judgment, the settled position of law with regard to binding nature of judicial pronouncements between the parties which cannot be made ineffective with the aid of any legislative power by enacting a provision, which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect.
Referring to G.C.Kanungo Vs. State of Orissa reported in (1995) 5 SCC 96, he submitted that a legislature has no legislative power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid or not binding, for such power if exercised would not be a legislative power exercised by it but a judicial power exercised by it encroaching upon the judicial power of the State exclusively vested in Courts. He submitted that this is a well settled proposition of law which has been recognized by the Supreme Court in paragraph 17 of the said judgment and also reiterated in paragraph 28.
He also referred to Shri Prithvi Cotton Mills Ltd. and Another vs. Broach Borough Municipality and Others reported in (1969) 2 SCC 283 and submitted that although the legislature does possess the power to validate statutes and pass retrospective law, but a validation Act would be an ineffective or invalid law, unless the cause for ineffectiveness or invalidity is removed before validation can be said to have taken place effectively. He submitted that in the instant case it would be clear from the provisions of the Amendment and Validation Act of 2013, that the object of the State Government was not to validate the law but was only for the purpose of rendering the judgment and order of this Court dated 17th October, 2012, nugatory.
Lastly, he referred to the judgment of this Court dated 17th October, 2012 passed in WP 4009 (W) of 2012 (The West Bengal Co- operative Bank Ltd. & Another vs. The State of West Bengal and Others) reported in AIR 2013 CAL 18 and submitted that a plain reading of the judgment would clearly reveal that its force has been simply taken away by the Amendment and Validation Act of 2013, which is impermissible in law.
On the other hand, learned Advocate General appearing on behalf of the State submitted that the Ordinance, which has since been repealed, was merely a clarificatory Ordinance. The clarification intended was that the members of the Board of Directors of those Cooperative Societies who had been elected prior to coming into force of the Principal Act of 2006, i.e., on 18th January, 2011, could not claim to be entitled to a tenure of five years from their election only by reason of coming into force of the Principal Act since those Board members had a mandate of three years tenure from the member voters of the Cooperative Societies under the Repealed Act of 1983. Those Board members who were elected to the Board on or subsequent to the coming into force of the Principal Act, i.e., 18th January, 2011, would have a tenure of five years. There is also no express provision in the Principal Act of 2006 which specifically provides that the tenure of existing Boards elected under the Repealed Act of 1983 would be extended by two years, thereby lengthening the tenure of those Boards to five years.
According to the learned Advocate General, the judgment of this Court dated 17th October, 2012 did not declare any status of the Board members who were elected to the Board, prior to 18th January, 2011, under the Repealed Act of 1983. The judgment did not say that they would also have a five year term although they were elected under the provision of the Repealed Act of 1983 with a mandate from the voters only for a three year term. The provisions of the Principal Act when brought into force created somewhat confusion, which was sought to be clarified by the Ordinance. He further submitted that from the perusal of the writ petition, challenging the Ordinance, being WP 3829 (W) of 2013 and the reliefs claimed therein, it would appear that although an indirect claim was made by the writ petitioners for a five year term as Board members, but this Court did not grant such claim, nor this Court made any adjudication as to their purported claim. This Court merely passed a consequential order in consequence of the failure of the State Government to appropriately mandate sub-section (2) of section 6 of the Principal Act in the Amendment Act of 2011. The Ordinance sought to remove the drafting defect pointed out by this Court in its judgment and order dated 17th October, 2012. The earlier Amendment Act, 2011 was disapproved by this Court as the amendment could not be effected without appropriately amending the language of section 6 of the Principal Act of 2006.
Learned Advocate General further submitted that it was within the plenary power of the State legislature to rectify / cure any defect in an existing legislation or even change the basis of any judgment with retrospective effect. He also submitted that neither the Ordinance nor the Amendment and Validation Act of 2013 in any way violates the Ninety Seventh Amendment of the Constitution. Any Constitutional Amendment is always prospective unless otherwise specifically mentioned. The Ninety Seventh Amendment of the Constitution was also prospective. It came into force on and from 15th February, 2012. Therefore, all Boards of Cooperative Societies elected on or after 15th February 2012, would have a tenure of five years, as per the Constitutional mandate. Both the Ordinance as well as the Amendment and Validation Act of 2013, provide that the Board of Cooperative Societies elected on or after 18th January, 2011, shall have a tenure of five years. The Boards of Cooperative Societies elected before 18th January 2011, shall get the tenure of three years, since those Boards were elected under the Repealed Act of 1983.
Learned Advocate General also submitted that challenge to the Bill, which has now became an Act, is on the same grounds as was taken while challenging the Ordinance. No additional submission as such has been made on behalf of the writ petitioner nor the judgments cited by the learned senior counsel for the petitioner has any application in respect of the facts and circumstances of the instant case.
He submitted that the writ petitioner is only a member of the West Bengal State Cooperative Bank and as a member he cannot be said to be an aggrieved person. Only an aggrieved person can file a writ petition.
Learned Advocate General, in conclusion, submitted that the submissions made on behalf of the State Government in WP 3829 (W) of 2013 are reiterated by him in the instant writ petition and more particularly, by replacing the word, "Ordinance" by the word, "Act". He further submitted, as stated earlier, that the Amendment and Validation Act of 2013 was also clarificatory just like the Ordinance was.
Since most of the judgments cited by the learned Advocate General during the course of hearing of the instant matter as well as the other writ petition challenging the Ordinance, being WP 3829 (W) of 2013, relates to the scope, power and jurisdiction of the writ Court to intervene in a case where the subject matter of challenge is an Ordinance, this Court refrains from making detailed reference to those judgments, since the Ordinance, in the meanwhile, has given way to the Amendment and Validation Act of 2013, which is now in force and is the subject matter of challenge in the present writ proceeding. A point, however, has been taken by the learned Advocate General with regard to the petitioner in the instant matter not being an "aggrieved person". He submitted that the writ petitioner, being only a member of the West Bengal State Co-operative Bank cannot be said to be an "aggrieved person" for the purpose of filing the instant writ petition. In this context, he has relied on the following judgments:-
(i) Ayaaubkhan Noorkhan Pathan vs. State of
Maharashtra and Ors. reported in AIR 2013 SC
58
(ii) Director of Settlements, A.P. and Others vs.
M.R.Apparao and Another reported in (2002) 4 SCC 638
(iii) Kalyan Singh vs. State of Uttar Pradesh and Others reported in AIR 1962 SC 1183
(iv) Rajahmundry Electric Supply Corporation Ltd. vs. A.Nageshwara Rao reported in AIR 1956 SC 213 There is no dispute to the settled proposition of law that only an "aggrieved person" can file a writ petition. The judgments relied on by the learned Advocate General, which have been referred above, make this position in law very clear. However, in order to determine the question as to whether the petitioner can be said to be an "aggrieved person", it is necessary to refer to the earlier writ petition, being W.P. 4009 (W) of 2012, wherefrom the judgment and order dated 17th October, 2012 emanated, which forms the genesis of the present matter. It is noticed that the writ petitioner in the instant matter was the petitioner no.2 in that writ petition. The action of the State, by bringing into force, first the Ordinance and subsequently, the Amendment and Validation Act of 2013, is directly consequential to the effect of the judgment and order dated 17th October, 2012. In such a fact situation, once the effect of such action of the State was felt by the writ petitioner, he certainly became an "aggrieved person"
for the purpose of instituting the present writ proceeding. Therefore, the submission of the learned Advocate General, in this regard, cannot be accepted.
Now, in order to examine the issue which is sought to be raised in the instant writ petition, it is necessary to advert to certain provisions of the Amendment and Validation Act of 2013, which seeks to amend certain provisions of the Principal Act. A notification dated 26th April, 2013 published in the Kolkata Gazette, Extraordinary, issued by the Government of West Bengal, Law Department (Legislative) introduces the Amendment and Validation Act of 2013, with the following recital:
"WHEREAS it is expedient to amend the West Bengal Co-operative Societies Act, 2006, for the purpose and in the manner hereinafter appearing;
It is hereby enacted in the Sixty-fourth Year of the Republic of India, by the Legislature of West Bengal, as follows:-"
The short title and commencement of the Act reads as follows:-
"1. (1) This Act may be called the West Bengal Co- operative Societies (Amendment and Validation) Act, 2013.
(2) It shall be deemed to have come into force with effect from the 4th day of February, 2013."
Section 2 of the Amendment and Validation Act of 2013 seeks to amend section 6 of the Principal Act as follows:
"In section 6 of the West Bengal Co-operative Societies Act, 2006 (hereinafter referred to as the principal Act), -
(1) in sub-section (2), for words "when such thing was done or suffered or such action was taken", the words "when such thing was done or suffered or such action was taken, unless otherwise specifically provided in this Act:" shall be substituted; (2) to sub-section (2), the following proviso shall be added:-
"Provided that such thing done or suffered or action taken shall not be deemed to have conferred any right which had not vested or accrued before the date of commencement of this Act or have extended any right which had vested or accrued before the date of commencement of this Act, to the board of a Co-operative Society registered or deemed to have been registered under the Co-operative Societies Act, 1912, or the Bengal Co-operative Societies Act, 1940, or the West Bengal Co- operative Societies Act, 1973, or the West Bengal Co-operative Societies Act, 1983, with the effect of such repeal."."
Section 3 of the Amendment and Validation Act of 2013 introduces the following amendment in respect of clause (a) of sub- section 5 of section 29 of the principal Act:
"For the first proviso to clause (a) of sub-section (5) of section 29 of the principal Act, the following proviso shall be substituted:-
"Provided that such election shall be held-
(a) in case the election of directors of the board held before the date of commencement of this Act, within three years from the date of such election;
(b) in any other case, within five years from the date of last election."."
Section 4 of the Amendment and Validation Act of 2013 introduces a new proviso after the second proviso to clause (a) of sub- section 5 of section 32 of the Principal Act, which reads as follows:-
" After second proviso to clause (a) of sub-section (5) of section 32 of the principal Act, the following proviso shall be inserted:-
"Provided also that a director elected or nominated in any board prior to the date of commencement of this Act, shall hold office throughout a term of three years of the board or till the board is dissolved under sections 34 or 35 or 36, whichever is earlier."."
Section 5 of the Amendment and Validation Act of 2013 introduces an amendment of section 36 of the Principal Act and reads as follows:
" In clause (a) of section 36 of the principal Act, for the words, figures and brackets "or within a period of thirty six months from the date of their election under sub-section (8) of section 27 of the West Bengal Co-operative Societies Act, 1983", the words and figures "or within a period of thirty six months from the date of their election where such election has been held before the date of commencement of this Act" shall be substituted."
Section 6 of the Amendment and Validation Act of 2013 contains a validation provision which reads as follows:
" The amendments made in the principal Act by section 2, section 3, section 4 and section 5 shall be deemed to have been made with effect from the date of commencement of the principal Act, i.e. from the 18th day of January, 2011 and accordingly anything done or any action taken or purported to have been taken or done not inconsistent with or repugnant to the provisions of the principal Act, so amended, on or after the said date and before the commencement of this Act, shall, notwithstanding anything contrary contained in any judgement, decree or order of any court, tribunal or other authority, be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done as if the said amendments had been in force at all material time." Section 7 of the Amendment and Validation Act of 2013 repeals the Ordinance and saves anything done or any action taken under the Principal Act as amended by the Ordinance with a deeming clause under sub-section (2) of section 7 of the Amendment and Validation Act of 2013.
The coming into force of the Amendment and Validation Act of 2013 brings about certain changes in the Principal Act, the effect of which are highlighted in bold and italics hereinbelow:
Sub section (2) of section 6 of the Principal Act, upon its amendment, reads as follows:
"(2) Notwithstanding such repeal anything done or suffered or any action taken including any rule made, and transaction entered into, any notification or notice issued with prospective or retrospective effect, any order passed, any appointment or registration made, any suit or proceeding commenced, any dispute decided or referred to arbitration, any right or title accrued, or any liability or obligation or penalty incurred under the Co-operative Societies Act, 1912 (2 of 1912) or the Bengal Co-operative Societies Act, 1940 (Ben.Act XXVI of 1940) or the West Bengal Co-operative Societies Act, 1973 (West Ben. Act XXXVIII of 1973) or the West Bengal Co-
operative Societies Act, 1983 (West Ben.Act XLV of 1983) shall be deemed to have been done or suffered or taken under this Act, as if the provisions of this Act were in force at all material times when such thing was done or suffered or such action was taken, unless otherwise specifically provided in this Act.:
Provided that such thing done or suffered or action taken shall not be deemed to have conferred any right which had not vested or accrued before the date of commencement of this Act or have extended any right which had vested or accrued before the date of commencement of this Act, to the board of a Co-operative Society registered or deemed to have been registered under the Co-operative Societies Act, 1912, or the Bengal Co-operative Societies Act, 1940, or the West Bengal Co-operative Societies Act, 1973, or the West Bengal Co- operative Societies Act, 1983, with the effect of such repeal."
Clause (a) of sub-section (5) of section 29 of the Principal Act, upon its amendment, reads as follows:
" (5) The agenda of the annual general meeting shall be as follows:-
(a) election of directors of the board, if any:
Provided that such election shall be held-
(a) in case the election of directors of the board held before the date of commencement of this Act, within three years from the date of such election;
(b) in any other case, within five years from the date of last election.
Provided further that after constitution of the Co-operative Election Commission, such election shall be held in an annual general meeting or a special general meeting under the provision of sections 29 and 31;"
Clause (a) of sub-section (5) of section 32 of the Principal Act, upon its amendment, reads as follows:
"(5)(a) A director elected or nominated under sub-section (1) except the chief executive shall hold office throughout a term of five years of the board or till the board is dissolved under sections 34 or 35 or 36 whichever is earlier:
Provided that a director under clauses (d) and (e) of sub-section (1) shall not be eligible for re-election or nomination, as the case may be, within a period of five years from the date of expiry of his term of office:
Provided further that a director under clause (c) of sub-section (1) shall be entitled to attend any meeting of the board, if he is suspended or punished in a departmental proceeding or a departmental proceeding against him is pending.
Provided also that a director elected or nominated in any board prior to the date of commencement of this Act, shall hold office throughout a term of three years of the board or till the board is dissolved under sections 34 or 35 of 36, whichever is earlier."
Clause (a) of Section 36 of the Principal Act, upon its present amendment, reads as follows: -
"the board of directors of any of the Co-operative societies shall, if the election of its directors has been held with a period of 60 months from the date of their election under sub-section (1) of section 29, or within a period of thirty six months from the date of their election where such election has been held before the date of commencement of this Act stand dissolved on and from the date immediately following the date of expiry of the said period."
The effect of the Amendment and Validation Act of 2013, as highlighted above, is that the Board of Directors of Cooperative Societies elected under the Repealed Act of 1983 will have a tenure of three years. It is to be now determined as to whether the State has taken recourse to a legislative process, the effect of which can be validated on the touchstone of the Constitutional principles that govern all of us.
The Principal Act came into force with effect from 18th January, 2011, in consonance with the proposed Constitutional Amendment.
The Amendment Act of 2011 came into force with effect from 06th February, 2012. The 97th Amendment of the Constitution of India received Presidential assent on 12th January, 2012, but came into force later, on 15th February, 2012, i.e., after the Amendment Act of 2011, came into effect. In The West Bengal State Co-operative Bank Ltd.'s case (supra), this Court - other than making certain observations with regard to the proposed Constitutional Amendment
- consciously did not dwell upon the effect of the 97th Constitutional Amendment on the Amendment Act of 2011, elaborately, other than observing that the retrograde change in the tenure of the Boards of Directors of Cooperative Societies elected under the Repealed Act of 1983, whittling down its tenure from five years to three years, had rendered nugatory, the conscious and deliberate change that was brought about by the State earlier, upon bringing into force, the Principal Act, which was in consonance with the proposed Constitutional Amendment.
As observed earlier, the learned Advocate General had submitted that both the Ordinance as well as the subsequent Amendment and Validation Act of 2013, were merely clarificatory in nature and were brought into effect only for the purpose of removing the confusion that prevailed upon the Principal Act coming into force and to remove drafting defects, as pointed out by this Court in its judgment rendered in The West Bengal State Co-operative Bank Ltd.'s case.
However, if such clarification or removal of confusion and drafting defects were required to be introduced by way of legislative amendment of the Principal Act, at least, this Court's judgment in The West Bengal State Co-operative Bank Ltd.'s case ought to have been referred to in the statement of Objects and Reasons or even in the Recital of the Bill. However, there is no such reference.
That apart, since this Court had never observed - even in passing - in The West Bengal State Co-operative Bank Ltd's case, that there was some element of confusion in the Principal Act, which was required to be removed or clarified, it cannot be said that the Amendment and Validation Act of 2013, was brought in only to remove confusion prevailing upon the Principal Act coming into force or for the purpose of clarification. As observed earlier, in The West Bengal State Co-operative Bank Ltd's case, this Court had categorically held to the effect that the five years tenure in respect of Board of Directors of Cooperative Societies elected under the Repealed Act of 1983, was a result of conscious and deliberate change brought about by the State earlier, upon bringing into force the Principal Act, which was in consonance with the proposed Constitutional Amendment.
It is noticed that the 97th Amendment of the Constitution has come into force much before the Amendment and Validation Act of 2013 came into effect. The 97th Amendment of the Constitution contains, inter alia, Article 243ZJ (2), which provides for a fixed term of five years from the date of election, in respect of the elected members of the Board and its office bearers. For convenience, relevant portion of Article 243ZJ (2) is set out hereinbelow:-
"(2) The term of office or elected members of the board and its office bearers shall be five years from the date of election and the term of office bearers shall be conterminous with the term of the board."
The Amendment and Validation Act of 2013 has come into force with effect from 4th February, 2013, i.e., after almost one year from the date of coming into force the aforesaid provision contained under Article 243ZJ (2) of the Constitution. The State, while bringing into force the Amendment and Validation Act of 2013, was required to be conscious and aware of the explicit Constitutional mandate contained under Article 243ZJ (2) with regard to the five years tenure in respect of elected members of the Board and its office bearers. Under the garb of clarification or removal of confusion and drafting defects, it could not have possibly brought about a retrograde change, since the 97th Amendment of the Constitution had already come into force, in the meanwhile. The State has, therefore, taken recourse to a legislative process, the effect of which cannot be validated on the touchstone of the well established Constitutional principles.
In the facts of the instant case, it is noticed that the object of legislation was not bona fide, even to begin with. It has tantamounted to overruling a judicial order - under the garb of clarification or removal of confusion and drafting defects, as submitted by the learned Advocate General - which was accepted by the State as final upon withdrawal of its appeal and is now binding between the parties. This is impermissible. If such legislative action is subsequently brought to the notice of a competent Constitutional Court by way of judicial review, it may be construed as an act of legislative adventurism that transgresses the legislature's plenary power to rectify/cure any defect in an existing legislation or even change the basis of any judgment with retrospective effect.
The resultant action has also tantamounted to a palpable demonstration of legislative arbitrariness by the State legislature. Insertion of the provisions contained under the Amendment and Validation Act of 2013, into the Principal Act, in effect, has curtailed the now Constitutionally mandated tenure of 5 years under Article 243ZJ (2) from only those Boards of Cooperative Societies which have been elected prior to the Principal Act coming into force, even though the legal fiction introduced under the non obstante provision in the Repeal and Savings clause - as contained under the unamended section 6 of the Principal Act - allowed such Boards of Cooperative Societies to continue for five years, which was in consonance with the proposed 97th Constitutional Amendment.
From the above discussion, it is patently obvious that the State legislature, while bringing into force the Amendment and Validation Act of 2013, has nullified the effect of the judgment rendered by this Court on 17th October, 2012 in W.P.4009 (W) of 2012 (The West Bengal State Co-operative Bank Ltd. & Anr. - vs. - The State of West Bengal & Ors.), which attained finality when the State Government withdrew its appeal preferred therefrom before a Division Bench of this Court. Taking away the effect of that judgment and rendering it nugatory has simultaneously resulted in taking away of the right, which crystallized in favour of the beneficiary of the judgment. The ratio of the decision rendered by the Supreme Court in Madan Mohan Pathak's case (supra) is, therefore, squarely applicable in the facts of the instant case.
No legislation can be held to be a valid piece of legislation - even if legislative competency is not in dispute - once it destroys an accrued Constitutional right by artificially reverting to a situation which existed earlier. In this context one may take notice of the following observation made by the Supreme Court in State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others:
"..................Can a law be made to destroy today's accrued constitutional rights by artificially reverting to a situation which existed 17 years ago? No. The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature- made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the dos and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today's right and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained (occurred) 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history..............."
The Amendment and Validation Act of 2013, is a classic example of how the State legislature chose to enact a law - purportedly clarifactory in nature - which takes away an accrued Constitutional right by artificially reverting to a situation which existed earlier and is no longer valid.
In such circumstances, there cannot be any manner of doubt, whatsoever, that the provisions of the Amendment and Validation Act of 2013, to the extent it seeks to fix the tenure of Boards of Directors of Cooperative Societies elected under the Repealed Act of 1983, to thirty six months - even after coming into force the 97th Amendment of the Constitution, with effect from 15th February, 2012 - is ultra vires Articles 243ZJ (2) and 14 of the Constitution of India and is liable to be struck down and accordingly struck down.
It is, however, made clear that this judgment shall have no effect in respect of those cooperative societies which have willingly participated in election of their respective Boards between 18th January, 2011, till date - notwithstanding the fact that their previous Boards were elected in terms of the Repealed Act of 1983 - since all cooperative societies are essentially democratic organizations and if their voluntary participation in the election process has resulted in duly elected Boards, the statutory tenure of those Boards ought not be disturbed.
The writ petition stands disposed of, accordingly.
(BISWANATH SOMADDER, J.) Later After the judgment is pronounced in Court, the learned Advocate General prays for stay of operation of the order, which is considered and refused.
(BISWANATH SOMADDER, J.)