Calcutta High Court (Appellete Side)
Souvik Datta & Ors vs The State Of West Bengal & Ors on 19 September, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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1 19.9.18 M.A.T. 1070 of 2018
(C.A.N.7283 of 2018)
sn
SOUVIK DATTA & ORS.
VS.
THE STATE OF WEST BENGAL & ORS.
Mr. Sardar Amzad Ali..Sr.Adv.
Mr. Asok Banerjee
Mr. Debanshu Ghorai
..for the applicants/appellants
Mr. Srijan Nayak
Ms. Rituparna Maitra
Mr. Biplab Das
Mr. Ankit Sureka
..for the Election Commission
Mr. Raja Saha
Mr. Amit Kr. Ghosh
..for the State
In re: C.A.N.7283/2018
This is an application arising out
of an appeal, which is preferred against a
judgement and order dated August 30, 2018
passed in an application filed under Article
226 of the Constitution of India in the
matter of Souvik Datta & Ors. Vs. The
Assistant Returning Officer, Co-operative
Directorate, Kolkata Range & Ors. (In re:
W.P.16445(w) of 2018).
By virtue of the order impugned to
this appeal, the above writ application was
disposed of granting liberty to the writ
petitioners to make a comprehensive
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application raising all disputes covered
under the writ petition and even those
otherwise, within a period of 30 days from
the date of passing the above order.
There was a further direction upon
the Election Commission also to hear out the
disputes in question upon due notice to all
parties and to pass a reasoned order within a
period of 60 days of making the application,
as aforesaid.
There was also a direction to
display the aforesaid notice on a Notice
Board of the Principal Office of the Society
in a permanent form.
Drawing our attention towards
Regulation 4 of the West Bengal Co-operative
Election Commission Regulations, 2012
(hereinafter referred to as the said
Regulation, 2012), it is submitted by Mr.
Sardar Amzad Ali, learned Senior Advocate
appearing on behalf of the appellants, that
the function of the Election Commission with
regard to holding the election is restricted
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to those Societies which have members up to
1000. According to Mr. Ali, the Co-operative
Society in question having more than 1000
members, the Election Commission was not the
appropriate forum to consider the grievance
of the appellants with regard to the Election
of "Delegates" held on August 11, 2018.
Drawing our attention towards a
representation dated July 18, 2018 submitted
to the Election Commission (at pages 121 to
123 of this writ application), it is
submitted by Mr.Ali that though the
irregularities relating to conducting the
Election were pointed out in the above
representation prior to holding of the
Election in question. The Election Commission
paid no heed to the same. According to Mr.
Ali, the Election Commission is bent upon
violation of law in conducting the Election
in question. Therefore, intervention of the
writ Court was required.
On the other hand, it is submitted
by Mr. Srijan Nayak, learned Advocate
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appearing on behalf of the Election
Commission, namely, the respondent nos. 2&3,
that the said regulation has been framed in exercise of power conferred under sub-section 8 of Section 96 of the West Bengal Co- operative Societies Rules, 2016. Under sub- clause (i) of sub-regulation (35) of Regulation 3 of the said regulation, any dispute relating to election of Delegates in any co-operative society should be referred to the Co-operative Election Commission within 30 days from the date of arising of such disputes. According to Mr. Nayak, there was no error and/or irregularities in passing the order impugned to this appeal in view of the aforesaid provisions. It is also submitted by Mr. Nayak, on instruction, from the officer of the respondent nos.2&3, who is present in Court today, that the Election of Board of Directors has already been held in respect of the Co-operative Society in question.
We have heard the learned Counsel 5 appearing for the respective parties at length and we have given our anxious consideration to the facts and circumstances of this case. Admittedly, the said regulation has been framed in exercise of power conferred under sub-section (8) of Section 96 of the West Bengal Co-operative Societies Act, 2006. In order to adjudicate the issue involved in this appeal, the provision of Clause (i) of sub-rule(35) of Regulation 3 is quoted below :
"Any dispute relating to election of delegates in any Co-operative society shall be referred to the Co- operative Election Commission within 30 days from the date of arising of such dispute."
There is no doubt or dispute in view of the above provision that in the matter of Election of Delegates, any dispute had to be referred to the Co-operative Election Commission at the first instance within 30 days from the date of arising such disputes.
In view of the above, we do not find any errors and/or irregularities in the order impugned to this appeal.
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Reliance is placed by Mr. Nayak in the decision of Secretary, West Bengal Co- operative Election Commission Vs. Commissioner, West Bengal Co-operative Election Commission, reported in 2017(2)CHN(CAL)579.
Taking into consideration the decision of this Court in Secretary, West Bengal Co-operative Election Commission (Supra), we find support to our above observation that for the purpose of "conduct" of all election to a registered co-operative Society in West Bengal, superintendence, direction and control vests squarely with the Co-operative Election Commission and its functionaries, which include, inter-alia, Returning Officers and Assistant Returning officers also.
However, the Court cannot be a mute spectator with regard to the conduct of the Election Commission in the instant case. It is not in dispute that a representation dated July 18, 2018 was submitted before the 7 Commissioner, Co-operative Election Commission, which was followed by two subsequent representations dated August 13, 2018, the Election being held on August 11, 2018.
It is a matter of surprise that while a Court was in seisin of the matter due to pendency of the writ application which gives rise to this appeal (which was affirmed on August 20, 2018), we are appraised of the fact that the Election of the Board of Directors of the Co-operative Society in question took place on September 14, 2018. No material was produced before the Writ Court to show that those representations were duly considered by the Election Commission. Since it was the intention of the legislature that it is within the domain of the State Government to appoint Co-operative Election Commissioner of Election Commission for the purpose of conducting the Election of Co- operative Society, an Election commissioner has been appointed in the State of West 8 Bengal and a delegated legislation by way of framing regulation has been introduced, we should be conscious while passing an order in course of judicial review.
Be that as it may, it will not be overstepping in the instant case to direct the Election Commission to consider the representation which may be submitted by the appellants before it strictly in terms of the order passed in the writ application and to add that the formation/Election of the Board of Directors shall be subject to such decision and till such decision the Election Commission shall ensure that no capital expenditure is incurred by the newly formed Board of Directors, if any, and will only be permitted to incur routine expenses.
We make it clear that liberty granted to the appellants for submitting the representation remains uninterferred with.
Since nothing else remains to be decided in this appeal, this appeal is treated as on day's list and the same is 9 taken up for hearing with the consent of the parties.
The appeal and the application are disposed of with the modification of the order impugned to this appeal to the extent as indicated hereinabove.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debasish Kar Gupta, J.) (Shampa Sarkar, J.) 10 11