Calcutta High Court (Appellete Side)
Kumar Mukhopadhyay vs State Of West Bengal & Ors on 28 August, 2025
28.08.2025
Item no.
PA (Chamber)
FMA/718/2019
KUMAR MUKHOPADHYAY
VS
STATE OF WEST BENGAL & ORS.
IA NO: CAN/1/2019(Old No:CAN/331/2019)
with
FMA/26/2024
THE MANAGING DIRECTORS, THE WEST BENGAL
CO-OPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
SRI PARTHA CHAKRABORTY AND ANR.
IA NO: CAN/1/2024
with
FMA/719/2019
KUMAR MUKHOPADHYAY
VS
STATE OF WEST BENGAL & ORS.
IA NO: CAN/1/2019(Old No:CAN/332/2019)
with
FMA/858/2023
THE MANAGING DIRECTOR ,THE WEST BENGAL
COOPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
SRI PRASANTA DAS AND ANR.
IA NO: CAN/1/2024
with
MAT/1719/2022
NARGIS KHATUN (BIBI)
VS
THE STATE OF WEST BENGAL AND ORS.
with
MAT/1747/2023
THE MANAGING DIRECTOR, THE WEST BENGAL
CO-OPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
SRI AMITAVA SINHA AND ANR.
IA NO: CAN/1/2024
with
MAT/1751/2023
THE MANAGING DIRECTOR ,THE WEST BENGAL
COOPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
SRI AMIT KUMAR ROY AND ANR.
IA NO: CAN/1/2024
with
MAT/1752/2023
2
THE MANAGING DIRECTORS, THE WEST BENGAL
CO-OPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
MRINAL KANTI DUTTA AND ANR.
IA NO: CAN/1/2024
Mr. Anshunath Chakraborty
..for the Appellant in
FMA 718 of 2019,
FMA 719 of 2019 and
MAT 1719 of 2022.
Mr. Bhaskar Prasad Vaisya,
Mr. Niloy Baran Mandal
..for the Appellants in
FMA 26 of 2024, FMA 858 of 2023,
MAT 1747 of 2023,MAT 1751 of
2023, MAT 1752 of 2023.
Mr. Milan Ch. Bhattacharjee, ld. Sr. Adv.,
Ms. Sulagna Bhattacharya
..for the Respondent no.4.
Mr. Bhaskar Prasad Vaisya, Mr. Nilay Baran Mandal ..for the respondent nos.5 & 6 in FMA 718 of 2019 and FMA 719 of 2019.
1. This Intra Court appeal impugns the order dated 16.11.2018 passed by learned Single Judge in WP 14724(W) of 2006 and WP 14725(W) of 2006 whereby the writ petitions of the appellant/employee were dismissed.
2. When this writ appeal was taken up for hearing, learned Counsel for the respondents/Federation raised a preliminary objection regarding maintainability of writ petitions by contending that the employee has 3 erroneously invoked the jurisdiction of this Court under Article 226 of the Constitution of India. The employer is a co-operative society and is not amenable to the writ jurisdiction of this Court. It is strenuously contended that although no affidavit-in-opposition was filed before learned Single Bench and before this Court, the objection of maintainability being a pure question of law can be raised through oral arguments. Thus, with the consent of parties, these batches of matters were heard only on the question of maintainability.
Contention of Appellant/employee
3. Facts are taken from MAT 1610 of 2018.
4. Learned Counsel for the appellants submits that the impugned order of the learned Single Judge is not passed on the aspect of maintainability. Instead, it is decided on merits. Since, employer has not raised any such objection of maintainability before learned Single Judge and before this Court, the objection is not tenable. Reliance is placed on the judgment of Supreme Court in the Deepak Tandon and another. vs. Rajesh Kr. Gupta reported in 2019 (5) SCC 537 wherein it was held that if a plea regarding maintainability has not been raised and competent authority did not decide the said question, it 4 cannot be raised at a later stage of the proceedings. Reference is also made on a Division Bench Judgment of Kerala High Court in WA. No.1873 of 2019 in (Dr. Azad R.P vs. Dr. Sreedevi K. Nair, Nss Colleges' Central Committee, The Nair service society, The Registrar, Principal Secretary, Dr. Balachandran. S., Dr. E.B. Suresh Kumar and Dr. Venugopal. S) wherein judgment of Deepak Tandon (supra) was considered.
5. Furthermore, it is argued that the question of maintainability of petition against co-operative society is not essentially a pure question of law. The question of 'maintainability' depends on various factors which are also factual in nature and, therefore, at best, it can be said that question of 'maintainability' is a mixed question of law and fact.
6. The learned Counsel for employee placed heavy reliance on Para 7 to 24 of the writ petition to contend that the necessary pleadings are made to show about the nature of object, activity, the financial, administrative and other kinds of control of the Government on the West Bengal Co- operative Milk Products Federation Limited (in short "Federation"). To elaborate, it is submitted that various clauses of the 'bye-laws' show the 5 element of control and the financial involvement of the Government in the federation and also the other aspects which will prove that the federation is either a State or its "instrumentality" within the meaning of Article 12 of the Constitution.
7. Lastly, the 'corporate profile' of federation reflected on its website is relied upon to project that federation was registered on 06.06.1983 and currently its 93 percent of shares are held by Government of West Bengal.
Contention of Learned Counsel for the Federation's stand:-
8. Mr. Milan Ch. Bhattacharjee, learned Senior Counsel for the Federation strenuously contended that the question of maintainability of a writ petition is a pure question of law which can be raised orally before the Court. He placed reliance on Section 2(2) of West Bengal Co-operative Societies Act, 2006 which defines the "Apex Society". Section 24 is referred to point out that final authority of co-operative society is the general body. Section 55A talks about 'Board of Directors' whereas Section 56A describes power and responsibility of the Board. Learned Senior Counsel submits that the final authority is the general body and milk unions have a definite role in the functioning of the federation. Thus, 6 federation, by no stretch of imagination can be said to be covered under Article 12 of the Constitution.
9. It is further argued that no statutory/mandatory provision of any statute was breached by the federation and, therefore, the writ petitions are not maintainable.
10. The reference is made to a Single Bench Judgment of Calcutta High Court in Bholanath Roy and others vs. State of West Bengal & Ors. reported in 1996 (1) CLJ 502 wherein it was held that milk union is not a 'State' and writ petition is not maintainable. It is reiterated that milk unions are backbone of the federation and if petition is not maintainable against the union, it is equally not maintainable against the federation.
11. The next reliance is on a Bombay High Court judgment in Sudam Vanaji Shirsat vs. Kari Sahakari Sangh Ltd. & Ors., reported in AIR 1992 Bombay 347. It is submitted that Bombay High Court opined that there was no such element of control of Government on the society which brings it within the four corners of the Article 12 of the Constitution. The judgment of Supreme Court in Ramesh Ahluwalia vs. State of Punjab & Ors., reported in (2012) 12 SCC 331 is referred to submit that in view of judgments of the 7 Supreme Court in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology, reported in (2002) 5 SCC 111 and judgment of Ajay Hasia vs. Khalid Mujib Sehravardi, reported in (1981) 1 SCC 722, if control is merely regulatory whether under statute or otherwise, it would not serve to make the body a "State". An old judgment of this Court in Arjed Ali Gazi vs. State of West Bengal reported in (1991) 1 CALLT211(HC) is referred to show that the Court opined that the Cooperative society in West Bengal is not a 'State' within the meaning of Article 12 and is also not a public undertaking. The further reliance is placed on the judgment of the Supreme Court in Supriyo Basu & Ors. vs. West Bengal Housing Board & Ors., reported in (2005) 6 SCC 289 where it was held that the society was not a department of the State and also not a creature of a statute but merely governed by a statute. No mandatory provision of a statute is violated and hence petition is not maintainable.
12. The last reliance is on the judgment of Supreme Court in S. S. Rana vs. Registrar, Cooperative Society & Anr., reported in (2006) 11 SCC 634. It is canvassed that merely because State has power to nominate the members in the Board of Directors, it cannot be said that State 8 exercised functional control over the affairs of the society in the sense that majority directors are nominated by the State. In view of these judgments, it is prayed that the petition was liable to be dismissed solely on the question of maintainability.
13. No other point is pressed by the learned counsel for the parties. We have heard the parties at length and perused the relevant pleadings and provisions.
Maintainability- a pure question of law?
14. Undisputedly, in the instant case, before the learned Single Judge and before this Court no response/affidavit in opposition is filed by the federation taking the objection of maintainability. Objection is taken by way of oral argument regarding maintainability. In our considered opinion, whether a cooperative society falls within the ambit and scope of Article 12 of the Constitution of India cannot be a pure question of law. It depends on the object of society and the nature of financial, functional and administrative control/domination of the Government in relation to each society. Thus, merely because federation is a cooperative society, as a rule of thumb, it cannot be said that it is not amenable to the writ jurisdiction of this Court. Interestingly, this 9 aspect was considered in Para 40 of the judgment of Supreme Court in Pradeep Kumar Biswas (supra) and it was held as under:
"40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."
(Emphasis Supplied)
15. A minute reading of this Para makes it clear like cloudless sky that the question of maintainability needs to be decided on the basis of various factors available in each case. Thus, we find substantial force in the argument of learned counsel for the appellant that question of maintainability in a case of this nature, cannot be said to be a pure question of law. We answer this point accordingly.
16. Pertinently, the learned counsel for the federation relied upon various judgments of High Courts and Supreme Court wherein the Courts opined that a particular Cooperative society does not fall within the ambit of Article 12 of the Constitution. Suffice it to say that in all the aforesaid judgments on which reliance is placed, the Courts have considered the necessary 10 ingredients on the strength of which such a conclusion were drawn. The necessary ingredients are relating to financial, administrative and functional control of the Government coupled with object of the society. Thus, the said judgments cannot be mechanically applied in the instant case.
Federation:
17. Admittedly, federation is a Cooperative Society under the State Act namely, West Bengal Cooperative Societies Act. Similarly, it is not in dispute that federation has its 'bye-laws'. The Clause 3.1 of the bye-laws is worth mentioning:
"3.1. The Fundamental Objective of the Federation is to carry out activities for promoting production, procurement, processing and marketing of Milk and Milk products for economic development of the farming community through the affiliated Milk unions."
(Emphasis Supplied)
18. Similarly, Clause 20.1.1 reads thus:
"20.1.1. 4/7 Board of Directors are government nominee (mandatorily)-
Two nominees of NDDB Two nominees of the State Govt. (ARD Dept) [Note- Additionally, the managing director can also be a state government nominee.]"
(Emphasis Supplied)
19. The "Corporate Profile" of the federation shows that it was registered on 06.06.1983 and currently its 93 per cent share is held by the State Government. By taking into account the 'object' of the federation, element of control mentioned in different clauses of bye-laws and the financial 11 control it needs to be examined whether the society is amenable to the writ jurisdiction of this Court or not.
20. Interestingly, the similar question cropped up before the MP High Court and the question of maintainability of petition was referred to a Full Bench of the High Court. The Full Bench in Dinesh Kr Sharma vs. M.P. Dugdh Mahasangh Sahakari Samiti Maryadit, reported in 1993 MPLJ 786 opined that federation is not a 'State' within the meaning of Article 12 of the Constitution. The correctness of this decision was again referred to a 5 judges' Special Bench of the High Court. The Special Bench in M. P. State Co- operative Dairy Federation & Ors. vs. Madan Lal Chourasia, reported in 2007 (2) M.P.L.J. 594 opined that federation is amenable to the writ jurisdiction of the High Court.
21. In Para 8, the above Special Bench considered the litmus test laid down by the Supreme court in the case of Ajay Hasia (supra) in order to ascertain whether the body is financially, functionally and administratively dominated by or under the control of the Government. After considering the main 'object' of the federation, the Special Bench opined that the purpose and object is for conducting various programmes of 12 manufacture, collection, processing, distributing, sale of milk and milk products for the economic development of farmers and for developing and safeguarding the milk business, milk producing animals and for economic development of groups engaged in milk production. Justice A. K. Patnaik (as His Lordship then was) speaking for the Special Bench recorded as under:
"Bye-law 3.2 states that for accomplishing the object indicated in bye-law 3.1, the Federation will perform various other functions mentioned therein. It is not necessary to refer the functions of the Federation stated in bye-law 3.2 of the Bye- laws of the Federation as the main object of the Federation discussed above clearly show that the work of the federation relates to economic development of farmers, who are engaged in production and sale of milk in the State of Madhya Pradesh and this work has been taken up by the State Government through the agency of the federation because development of milk and milk products and economic development of farmers carrying the business of sale of milk and milk products are part of the functions of a welfare State."
(Emphasis Supplied)
22. In the instant case, Clause 3.1 of bye-laws of federation shows that the nature of activity and objective of present federation is almost similar to the activity of federation which was party before the Special Bench in MP High Court. The object is to uplift economic development of farming community.
23. The learned counsel for the appellant/employee strenuously contended that at present, 93 per cent of share of federation is held by State Government. The "Corporate Profile" was referred to establish the same and pertinently this 13 factual aspect has not been refuted by the learned counsel for the federation. The Special Bench in Madan Lal Chourasia (supra) opined that more than 90 per cent of share capital of federation is held by the Government and accordingly there exists a financial domination/control of the Government. The Special Bench further recorded as under:
"In respect of the financial control, the case of the Federation is similar to the case of the "CSIR" in Pradeep Kumar Biswas (supra) and "the Corporation" in Virendra Kumar Srivastava (supra) in which the Supreme Court has held that the CSIR and the Corporation are financially dominated by the Government. Accordingly, we hold that the Federation is financially dominated by the Government."
(Emphasis Supplied)
24. In tune with this finding, we are constrained to hold that in the instant case since more than 90 per cent of the share capital is held by the Government, it can be safely held that federation is financially dominated by the Government.
25. The Clause 20.0 deals with "Board of Directors". It reads thus:
"20.1.1. The Board will consist of the following:
i) Chairman of the affiliated Milk Unions.
ii) Registrar, Cooperative Societies, or his authorised representative
iii) Two nominees of NDDB
iv) Two nominees of the State Govt. (ARD Dept.)
v) Managing Director of the Federation (Ex-
officio)"
(Emphasis Supplied)
26. A plain reading of Constitution of board shows that 4 out of 7 Board of Directors are Government nominees. Two nominees are of National Dairy 14 Development Bank, a Central Government Organisation. Two nominees are of State Government. The Managing Director can also be a State Government nominee. It is thus clear from aforesaid composition of board of directors of the federation that Government has sufficient number of nominees in the board of the federation. The Board of Directors of the federation have all the administrative power to run the federation. The similar was the situation in the case of Pradeep Kumar Biswas (supra) and Virendra Kumar Srivastava vs. U.P. Rajya Karmachari Kalyan Nigam, reported in (2005) 15 SCC 149.
27. Upon consideration of these factors, we have no cavil of doubt that the federation is financially, administratively and functionally dominated or controlled by the Government of West Bengal. In our view, such domination and control is pervasive in nature and therefore, federation is certainly amenable to the writ jurisdiction under Article 12 of the Constitution as per the law laid down in the majority judgment of the Supreme Court in the case of Pradeep Kumar Biswas (supra). A holistic view of the object, functioning of the federation makes it clear that State Government has pervasive control on the federation. Merely because milk union is held to be not a 'State' by 15 this Court will not take Federation out of the purview of Article 12 of the Constitution. We respectfully agree with the view taken by the 5 Judges (Special Bench) of MP High Court in the case of Madan Lal Chourasia (supra). Once, we hold that the federation is covered under Article 12 of the Constitution, its decisions become subject matter of judicial review on permissible legal parameters. One such legal parameter is flowing from Article 14 of the Constitution of India. In other words, the decision of federation can be tested on the anvil of breach of fundamental rights and aspects of fairness/non-arbitrariness etc. In this view of the finding, the judgment of Supriyo Basu (supra) is of no help to the federation for the simple reason that in the said case, the Apex Court has not tested the action/order on the anvil of fundamental rights or on the aspects of fairness and non-arbitrariness etc. Thus, preliminary objection raised by federation is overruled.
(SUJOY PAUL, J.) (SMITA DAS DE, J.)