Calcutta High Court (Appellete Side)
Sukumar Bera vs The State Of West Bengal & Others on 20 January, 2022
20.01.2022
Item 11-13
Court No.6.
AB
Through Video Conference
M.A.T. 1011 of 2021
With
I A CAN 1 of 2021
Sukumar Bera
Vs
The State of West Bengal & Others
With
M.A.T. 1012 of 2021
With
I A CAN 1 of 2021
Suvendu Adhikari
Vs
The State of West Bengal & Others
With
M.A.T. 808 of 2021
With
I A CAN 1 of 2021
Sukumar Bera
Vs
The State of West Bengal & Others
Mr. Joydip Kar, Sr. Adv,
Mr. B. Bhattacharya,
Mr. Anish Kr. Mukherjee,
Mr. Saket Sharma,
Mr. Amrit Sinha ...for the Appellant in
MAT 1012 of 2021 & for the
Respdt. No.8 in MAT 1011 of 2021
& Respdt. No.2 to 5 in MAT 808 of 2021.
Mr. Abhrotosh Majumdar, Sr. Adv,
Mr. Srijib Chakraborty,
Mr. Aditya Mondal ...for the Appellant in
MAT 1011 of 2021 &
MAT 808 of 2021.
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Mr. S. N. Mookherjee, ld. AG,
Mr. Anirban Roy,
Mr. Raja Saha,
Mr. Debasish Ghosh ...for the State in
MAT 1012 of 2021.
Mr. S. N. Mookherjee, ld. AG,
Mr. Anirban Roy,
Mr. Srijan Nayek,
Ms. R. Maitra,
Mr. N. Chatterjee ...for the State in
MAT 1011 of 2021.
Mr. S. N. Mookherjee, ld. AG,
Mr. Anirban Roy,
Mr. Srijan Nayek,
Ms. R. Maitra ...for the State in
MAT 808 of 2021.
Mr. Pratik Dhar, Sr. Adv,
Mr. Ritwik Pattanayak...for the Respdt.
Nos.6, 7, 9 to 18 in
MAT 1011 of 2021 and
MAT 1012 of 2021.
Mr. Pratik Dhar, Sr. Adv,
Mr. Ritwik Pattanayak....for the Respdt.
Nos.6 to 12 in MAT 808
of 2021.
Ms. Cardina Roy ....for the Respdt. No.3
In MAT No.808 of 2021.
By consent of the parties, all three appeals and
the connected applications are taken up for hearing
and disposal together.
In re : MAT 808 of 2021.
This appeal was preferred against an order dated
August 2, 2021. The order of the learned Single Judge
was passed in a writ petition filed by the appellant
challenging a requisition dated July 22, 2021 for
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removal of the Chairman of the concerned Cooperative
Bank.
The learned Judge set aside the requisition
notice having found certain infirmities therein.
However, the learned Judge granted liberty to the
requisitionists to make fresh requisition for removal of
the Chairman of the Bank. Challenging this liberty,
the present appeal has been filed.
We have heard learned Counsel for the parties.
The fact remains that pursuant to the liberty granted,
fresh requisition was made and in fact meting was
held. The order has worked itself out. In our opinion,
nothing remains of this appeal.
MAT 808 of 2021 along with IA CAN 1 of 2021
are, accordingly, disposed of.
In re : MAT 1011 of 2021 & MAT 1012 of 2021
MAT 1011 of 2021 is an appeal preferred by
Sukumar Bera against an interim order dated
September 6, 2021, passed by the learned Single
Judge in WPA 13557 of 2021. The writ petition was
filed challenging a resolution of the Board of Directors
of the concerned Bank removing the Chairman of the
Bank, namely, Suvendu Adhikari. The resolution was
passed on August 24, 2021.
The learned Single Judge refused to pass any
interim order. Against such refusal, the present appeal
has been filed.
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MAT 1012 of 2021 is an appeal filed by Suvendu
Adhikari against an interim order dated September 9,
2021, passed in WPA 14111 of 2021 which was filed
challenging the requisition notice for his removal as
Chairman of the Board of the concerned Bank and
also the Board resolution dated August 24, 2021,
removing him as Chairman. By the said order, the
learned Single Judge refused to grant any interim
protection. Against such refusal, this appeal has been
preferred by Suvendu Adhikari.
We have heard learned Counsel for the parties at
length. The main point that arises is whether or not,
the requsitionists and directors, who requisitioned the
meeting for removal of the Chairman of the Bank, were
competent to do so. In other words, were they valid
directors of the Bank when they requisitioned the
meeting.
The appellants, who have assailed the
requisition and the resolution removing the Chairman
of the Bank, contend that out of the seven
requisitionists, five had become disqualified as
Directors in view of Section 10A(2A) of the Banking
Regulation Act, 1949. Hence, the requisition was not
in terms of Rule 51 of the West Bengal Cooperative
Rules and could not be acted upon. This would render
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the proceedings at the meeting and the resolution
taken thereat bad in law.
Learned Advocate for the requisitionists argued
that Section 10A(2A) of the 1949 Act would not apply
in the facts and circumstances of the case. The said
section was introduced by amendment with effect from
September 29, 2020. It cannot affect the tenures of
the Directors of the Bank, who were elected prior to
that, in the year 2017.
Another point that has been urged by learned
Counsel for the appellants is that the requisition and
the meeting were not in accordance with the
provisions of Rule 51 of the West Bengal Cooperative
Societies Rules, 2011.
Learned Advocate General appeared for the State
and in effect argued that Section 10A(2A) of the
Banking Regulation Act shall only apply to Directors of
the Bank, who have been appointed subsequent to the
said provision of law coming into force.
We are considering appeals from interim orders.
The writ petitions are pending before the learned
Single Judge. We are not inclined to decide the issues
raised before us on merits. We are of the view that
these issues should be decided at the first instance by
the learned Single Judge.
We, however, record that we find the arguments
of both sides to be attractive. Both sides have arguable
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cases. One of the issues raised by the appellants
herein is that the present Board of Directors of the
Bank is incompetent to act since most of the Directors
stand disqualified by operation of law since their
tenures exceed a continuous period of eight years,
which is in violation of Section 10A(2A) of the Banking
Regulations Act. We do not think that it would be
appropriate for us to express any final opinion on this
point since this very point, we are told, is under
consideration in a Public Interest Litigation before a
Coordinate Bench and the matter has been heard at
length by that Bench. However, prima facie, we find
some substance in the argument advanced by Mr. Kar
and Mr. Majumdar, learned Senior Counsel appearing
for the appellants. The tenure of the present Board is
due to expire on or about February 5, 2022 i.e. in
about two weeks' time.
Mr. Dhar, learned Senior Advocate for the
requisitionists has pointed out that the Election
Commission has passed an order for taking steps for
election on December 28, 2021. On that basis, the
Returning Officer was appointed on December 30,
2021. Thereafter, draft voters list was published on
January 11, 2022 and final voters list has been
scheduled to be published on January 24, 2022.
Hence, we see that fresh election is scheduled to
be held very soon.
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Since there is a serious contention about the
competence or authority of the present Board to be in
charge of the affairs of the Bank and since the Bank
deals with public money, we are of the view that for its
remaining tenure till the constitution of a fresh Board,
the present Board should function under the general
supervision of an Officer to be nominated by the
Governor of the Reserve Bank of India. Such Officer
shall not interfere with the day to day functioning of
the Board. However, any major policy decision shall be
taken and any transaction over the value of Rs.1 Crore
shall be undertaken by the Board only in consultation
with such Officer. We are passing this order of interim
arrangement in public interest and to inspire public
confidence in the functioning of the concerned Bank.
The Reserve Bank of India being the guardian of all
Banks in India and having supervisory power over
such Banks, we are sure that the present Board shall
not find it objectionable to function for the limited
period indicated above under the general supervision
of an Officer of the Reserve Bank of India.
All points are left open for the learned Single
Judge to decide upon hearing the parties. No
observation in this order shall have any bearing at the
final hearing before the learned Single Judge.
The Governor, Reserve Bank of India is
requested to appoint a responsible Officer for the
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purpose indicated above immediately and preferably
within 48 hours upon receipt of a copy of this order
from the Registrar General of this Court.
We clarify that the Officer to be nominated by
the Governor of the Reserve Bank of India for the
aforesaid purpose shall function in terms of this order
only till the reconstitution of the Board. Upon such
reconstitution of the Board, the Officer shall become
functus officio.
Since we have not called for affidavits, the
allegations in the stay petitions are deemed not to be
admitted by the respondents.
The appeals being MAT 1011 of 2021, IA CAN 1 of 2021 and MAT 1012 of 2021, IA CAN 1 of 2021 are, accordingly, disposed of.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. (Kausik Chanda, J.) (Arijit Banerjee, J.)