Sri Subrata Roy & Ors vs The State Of West Bengal & Ors on 11 October, 2023

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Calcutta High Court (Appellete Side)

Sri Subrata Roy & Ors vs The State Of West Bengal & Ors on 11 October, 2023

Mr. Ashit Kumar Chakraboty Mr. Sunanda Mohan Ghosh ... For the added respondents Mr. Jayanta Kumar Mitra Mr. Ankit Sureka Mr. Asis Dutta ...For the respondent no. 9 With WPA 23657 of 2023 Kamales Chakrabarti & Ors.

The State of West Bengal & Ors.

Mr. Pabitra Charan Bhattacharjee ...For the petitioners 2 Mr. Lalit Mohan Mahata Mr. Rudranil De ...For the State Mr. P.K. Roy Mr. Biplob Das ...For the respondent no. 3 Mr. Srijan Nayak Ms. Rituparna Maitra ... For Co-operative Election Commission The act of the Commissioner, Cooperative Election Commission in holding election of the Tamluk Ghatal Central Cooperative Bank Limited by appointing special officers in the Primary Cooperative Societies, without holding election of the Primary Cooperative Societies, is under challenge in the present writ petitions.

The facts, issues and points of consideration in both the writ petitions being similar, both the writ petitions are taken up for consideration analogously and a common order is being passed.

The petitioner no. 1 in the matter of Subrata Roy & Ors. was the Director and officer bearer of the Tamluk Town Cooperative Credit Society Limited. Petitioner no. 2 was the delegate of Kumarchak SKUS Limited, petitioner no. 3 was the delegate of Kabiguru Wholesale Cooperative Society Limited, petitioner no. 4 was the delegate of Dhaahara Khandagram SKUS Limited, petitioner no. 5 was the delegate of Bar Bahichberia SKUS Limited, petitioner no. 6 was the delegate of Tamluk Ghatal Central 3 Cooperative Bank from Ratulia SKUS Limited and the petitioner nos. 7 to 10 are the members of diverse Cooperative Societies Limited.

The petitioners in the matter of Kamales Chakrabarti & Ors. are members of respective Co-operative Societies and the petitioner nos. 1, 6 and 7 are the delegates of their Societies.

The tenure of the Board of Directors of Tamluk Ghatal Central Cooperative Bank Limited expired on 9th June, 2023 and presently the highest designated employee of the Society is managing the day to day affairs of the said Society.

According to the provision of the West Bengal Cooperative Societies Act, 2006 (hereinafter referred to as the 'said Act') it is the duty of the Board of Directors of the Cooperative Society to manage its affairs. The Directors are to be elected within five years from the date of last election.

The election of Tamluk Ghatal Central Cooperative Bank Limited is a two tier election. The delegates of the Primary Cooperative Societies vote in the general meeting for election of Directors of the Central Cooperative Society. Each delegate holds office till fresh delegates are elected in their place provided fresh delegates shall be elected before each annual general meeting in which election of Directors is to be held under sub-Section 1 of Section 29. 4

As the election of the Central Bank was not held within the validity of the earlier Board, the Directors of the Board of the Cooperative Society, in terms of Section 36 of the said Act, are deemed to have vacated their offices. The State Government, as such, was liable to appoint special officers from amongst the officers of the State Government for managing the affairs of the Cooperative Society for a period not exceeding one year from the date of expiry of the period.

The special officer appointed to manage the affairs of the Cooperative Society has a duty to conduct election and hand over the management to the newly elected Board.

As the tenure of the Primary Cooperative Societies expired long back, the State Government, by diverse notifications, appointed special officers in the Primary Cooperative Societies. All the special officers appointed are the employees of the Central Society, that is, the Tamluk Ghatal Central Cooperative Bank Limited. The petitioners allege that only those persons who owe allegiance to the ex-Chairman of the dissolved Board of Directors of the Central Society, have been appointed as special officers.

There are 1025 members of the Central Cooperative, out of which according to the records of the Registrar, Cooperative Societies, 477 are not-working. Out of the balance 548 functional Societies, 265 are run by the 5 elected Board of Directors, 76 are run by the highest designated employee and 207 by the special officers. The highest designated employees are not entitled to sent delegates; which implies that out of the 548 functional societies 76 primary societies cannot sent their delegates for voting for election of the Directors. Out of the left out 472 primary Societies, 466 delegates have been sent for election of the Central Cooperative Society.

After the appointment of the special officers from the month of March, 2023 onwards till August, 2023, steps have been taken for preparation and publication of the draft voters' list and election has been fixed on 15th October, 2023.

The petitioners contend that it was highly improper for the State Government to appoint employees of the Central Bank to act as special officers. The same is contrary to the provision of Section 36 of the said Act which specifically mandates officers of the State Government to be appointed as special officers.

It has been submitted that the notification by which the special officers were appointed ought to have been published in the official gazette. In the instant case there is no such notification published in the official gazette relating to appointment of special officers. Till the notification is published in the official gazette, the 6 appointment of special officers cannot be treated as a valid one and the special officers do not have any right/authority to conduct the election.

It has been submitted that the State Government is committing a fraud on the statute by not acting in terms of the prescribed mandate of law.

The Cooperative Societies which do not have a valid Board of Directors and where special officers are yet to be appointed, will be automatically barred from participating in the election of the Central Cooperative Society. Accordingly, the entire election will turn out to be a farce.

The State Government ought not to exempt any Cooperative Society from the operation of the provision of the said Act and exemption cannot be accorded for extension of the tenure of the Board of Directors.

The special officers are not authorized to name the delegates. At least twelve bank employees appointed as special officers have proceedings initiated against them challenging their appointment.

Prayer has been made to restrain the Central Cooperative Society to constitute its Board of Directors till the election is conducted in the Primary Cooperative Societies.

In support of the aforesaid statements and prayers the petitioners rely upon the decision passed by the Hon'ble Supreme Court in the matter of Bharati Reddy vs. State of Karnataka & Ors. reported in (2018) 12 SCC 61 paragraphs 6, 11, 13 and 15.

The submission of the petitioners is opposed by the respondents. An application for addition of party at the instance of the candidates who contested the election for the Central Cooperative Bank and who claim themselves to be elected uncontested has been filed in the matter of Subrata Roy and Ors.

The respondents and the applicants unanimously submits that the schedule of election was published in the month of August, 2023 and draft voters' list was published on 4th September, 2023. Objections were invited and date of hearing was fixed after hearing the objections, the final voters' list was also published. The affiliated Societies sent the names of the delegates and the election of the Board of Directors is scheduled on 15th October, 2023.

It has been submitted that the petitioners intend to thwart the entire election process at the very last stage. Had the petitioners been aggrieved by the act of the respondent authorities, steps ought to have been taken immediately after the notification was published appointing special officers.

It has been contended that the petitioners ought to have approached the appellate forum and exhausted the statutory remedy available to them instead of rushing to the writ Court at the last moment. It has been contended that the petitioners' approach in the writ petition cannot be taken to be a bona fide one, not acting in the interest of the Society.

The locus standi of the petitioners has also been questioned. It has been submitted that out of lakhs of members of the central Cooperative Society only ten in the matter of Subrata Roy & Ors. and only nine in the matter of Kamalesh Chakraborty & Ors. have approached the Court. The petitioners cannot be treated as representatives of the rest members. The present writ petition, not being a public interest litigation, cannot be entertained as the petitioners cannot be treated as 'aggrieved party'. The applicants rely on the decision delivered by the Hon'ble Supreme Court in the matter of Election Commission of India vs. Ashok Kumar & Ors. reported in (2000) 8 SCC 216 where the issue arising for decision was the jurisdiction of the High Court to entertain petitions under Article 226 of the Constitution of India and to issue interim directions after commencement of the electoral process, and Shaji K. Joseph vs. V. Viswanath & Ors. reported in (2016) 4 SCC 429 wherein the Court held that the High Court was not right in interfering with 9 the process of election especially when the process of election had started upon publication of the election program and more particularly when an alternative statutory remedy was available.

It has been contended that assuming that the notification for appointment of the special officers have not been published in the official gazette, the same may be considered as a mere irregularity and can always be regularized. Non-publication of the notification in the official gazette will not be fatal and ought not to stand in the way of holding the elections. All the members of the Central and the Primary Cooperative Societies are aware of the appointment of the special officers and, as such, all members have knowledge of their appointment. As none approached the statutory appellate forum challenging the appointment of special officers, it has to be deduced that none, but for the petitioners, have any objection to their appointment.

It has been submitted that if the election of the Central Cooperative Society is not conducted within the prescribed time period, then the entire functioning of the Central Cooperative Society may come to a standstill causing prejudice to lakhs of members.

Learned counsel representing the respondent no. 9 being the Central Cooperative Bank relies upon the 10 unreported judgment delivered by a co-ordinate Bench of this Court on 26th April, 2022 in WPA 5924 of 2022 in the matter of Ramkrishna Das vs. State of West Bengal & Ors. wherein the Court permitted the election Commission to conclude the election process.

The respondent also relies upon an unreported order dated 15th September, 2023 passed by this Bench in WPA 21170 of 2023 in the matter of Sk. Farid Ali vs. The State of West Bengal & Ors. wherein the Court directed the Commission to take prompt necessary steps for holding the election in accordance with law.

Respondents pray for dismissal of the writ petitions. I have heard and considered the rival submissions made on behalf of all the parties.

It appears that all the issues raised in the present writ petition cannot be decided without exchange of affidavits and without a full-fledged hearing.

For the purpose of granting interim order in the matter the balance of convenience and inconvenience of the respective parties have to be taken into consideration.

Admittedly, in the instant case publication of notification for appointment of special officers commenced on and from July, 2023. Assuming that the notifications were not published in the official gazette, but it appears 11 that the members were more or less aware of their appointment.

It is true that, ideally, the election of the Primary Cooperative Societies ought to have been held prior to the election of the Central Cooperative Society so that the delegates of the Primary Cooperative Societies can cast votes in the election of the Central Cooperative Society.

In the instant case as the tenure of the Primary Cooperative Societies expired long back, accordingly, the Directors of the Primary Cooperative Societies lose their opportunity to cast vote for the election of the Directors of the Central Society. The State Government, conveniently, appoints special officers from amongst the employees of the Central Society so that the said special officers can act as per the dictates of the Government. The aforesaid action has shown results as the election to the Central Society has more or less remained uncontested. The purpose of the Government to keep control over the Central Bank appears to have been taken care of.

Despite the above, the question is whether to exercise jurisdiction and interfere in the election process at such a late stage. It appears from records that the election programme was declared in early September. The petitioners have waited till the end of September to approach this Court and by the time the writ petitions 12 could be taken up for consideration, the process of election is nearly over. The election is scheduled on 15th October, 2023.

In line with the decisions referred to above and keeping in mind that the functioning of the Central Society may be at stake if the election is interfered with at this stage, accordingly, the Court refrains from interfering with the election for the time being. However, it is made clear that the result of the election of the Central Cooperative Society will be subject to the final order passed in the instant writ petition.

It goes without saying that the elections of the Primary Cooperative Societies ought to be held at the earliest and concluded latest by six months, come what may. The said elections are due for a considerable period of time.

The Election Commission is, accordingly, directed to take prompt necessary step for conducting and concluding the election of the Primary Cooperative Societies at the earliest but positively within six months from date.

The respondents and the applicants are directed to file affidavit in opposition within a period of eight weeks, reply, if any, may be filed within a fortnight thereafter. Liberty to mention for hearing.

The applicants being the contesting members of the election may have a say in the writ petition and may be prejudiced if any order is passed in the writ petition, behind their back. Accordingly, the application for addition of party stands allowed. The applicants be added as private respondents in the writ petition.

CAN 1 of 2023 in WPA 23439 of 2023 stands disposed of.

Urgent certified photocopy of this order, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)

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Calcutta High Court (Appellete Side)