Calcutta High Court (Appellete Side)
Sukumar Bera vs The State Of West Bengal & Ors on 7 June, 2022
Author: Shampa Sarkar
Bench: Shampa Sarkar
S/L 3
07.06.2022
Court. No. 19
GB
WPA 9709 of 2022
With
CAN 1 of 2022
Sukumar Bera
VS
The State of West Bengal & Ors.
Mr. Soumya Majumder,
Mr. Srijib Chakraborty,
Mr. Suryaneel Das,
Mr. Aditya Mondal.
... for the Petitioner.
Mr. Pratik Dhar,
Mr. Pappu Adhikari.
... for the Applicant
(in CAN 1 of 2022).
Mr. Joyak Kumar Gupta.
... for the State.
Mr. P.K. Roy,
Mr. Biplob Das,
Mr. Ankit Sureka.
... for the Respondent Nos.3,4 & 7.
Mr. Ritwik Pattanayak.
... for the Respondent No.6.
This matter was listed for an extension of the interim order passed on May 30, 2022, by which the publication dated May 24, 2022 made by the Assistant Returning Officer, was stayed for a period of one week by a learned coordinate Bench.
The publication dated May 24, 2022 is an election programme, in which the entire process for the election in the Contai Cooperative bank has been laid down, with the schedule and the dates. The said notification was issued by the Assistant Returning Officer, Contai Co-operative Bank Limited.
2According to the petitioner, a coordinate Bench of this Court had passed an order in WPA No.8429 of 2022, directing the respondent nos.3 and 4 therein (the commission and its officer) to conclude the election process of the new board of directors of the Contai Co-operative Bank Limited through the Special Officer preferably by October 15, 2022.
Mr. Majumder, learned advocate appearing on behalf of the petitioner (a member of the Co-operative Bank), submits that the order of the co-ordinate bench was violated by the respondents by issuing the notification, inasmuch as, as per the order dated May 18, 2022, the election should have been initiated and conducted by the Special Officer, who had been appointed by the State of West Bengal. Reliance has been placed on the provisions of Section 36 of the West Bengal Co-operative Societies Act, 2006 (hereinafter referred to as the 'said Act').
Mr. Majumder refers to Sub-Section 2 of Section 36 of the said Act and submits that the Special Officer had been appointed to manage the affairs of the co-operative society upon expiry of the term of the board, and he has to conduct the election within his tenure and hand over the management to the newly elected board. Further reference has been made to Section 96(4), which provides that the Election Commission must hold the election of all registered co-operative societies in West Bengal in due time under the provisions of Chapter-IV of the Act and shall take all measures in this regard as it may think fit and in such 3 manner as prescribed. He submits that the appointment of the Special Officer was under Chapter-IV.
According to Mr. Majumder, a harmonious reading of the order of the learned coordinate Bench dated May 18, 2022, Sub-Section 2 of Section 36 and Sub-Section 4 of Section 96 of the said Act, would be that the Special Officer so appointed under Section 36 of the said Act, must initiate the process of election and regulate and decide all election related issues, including preparation of the schedule. Only the polling would be monitored and controlled by the Commission.
Mr. Jayak Kumar Gupta, learned advocate appearing on behalf of the State respondents refers to the Co-operative Societies Act and the Rule 154(5)(c) and submits that for every election in a co-operative society, the Co-operative Election Commission shall in consultation with the State Government appoint Returning Officer, Assistant Returning Officer and such polling personnel as may be required to conduct election. Such personnel shall be an officer or an employee of the State Government and such officer and employee shall be deemed to be deputed under the Co- operative Election Commission, West Bengal. He further submits that Section 96 of the said Act provides that it is only the Co-operative Election Commission constituted by the State Government, which can conduct election of a co- operative society.
Mr. Dhar, learned senior advocate, who seeks to intervene in the matter, has filed an application for addition 4 of party. He submits that the writ petition must be dismissed for non-joinder of parties. According to him, Mr. Majumder was actually relying upon an order passed by a coordinate Bench dated May 18, 2022, in WPA 8429 of 2022. The said writ petition was filed by Mr. Dhar's client. The respondent nos.3 and 4 therein (Commission and its officer) were directed to conclude the election process of the new board of directors of the said bank, through the Special Officer. As the order was passed in a writ petition filed by Mr. Dhar's client, according to Mr. Dhar, the writ petitioner therein, namely, Mirza Samser Begg ought to have been added as a respondent.
He next submits that, if it is the contention of Mr. Majumder that the Special Officer must conduct the election, in that case, the Special Officer ought to have also been added as a party, for proper adjudication of the dispute. He prays that the application for addition of party being CAN 1 of 2022 be allowed. Mr. Majumder opposes such prayer and submits that the locus of the intervenor is doubtful and as such, an affidavit-in-opposition would be necessary before such application for addition of party is allowed.
Mr. P.K. Roy, learned advocate appearing on behalf of the Election Commission submits that the interpretation of the petitioner that the Special Officer in terms of Section 36(2) of the said Act should conduct the election of the co- operative society, is misconceived. It is only the Co-operative Election Commission, which has the authority under the law to conduct the elections of co-operative societies. That by 5 filing the writ petition the petitioner who is a member, is trying to postpone the election for extraneous reasons and such attempt is also in violation of the order of the Hon'ble Division Bench.
Heard the parties.
As this co-operative society has more than 82,000 members, the election has to be done in stages. First election of the delegates, then the election of the board of directors. After the election of the board of directors is complete, the election of officer bearers has to be concluded.
In this case, the term of the board expired and accordingly a Special Officer was appointed under Section 36 of the said Act. The order of appointment of the Special Officer was stayed by the Hon'ble Division Bench, which was subsequently vacated.
Previously, the bank had filed a writ petition being WPA No.1801 of 2021 for a direction upon the Commission to appoint a Returning Officer for holding the election as the term of the board of directors was to expire on February 4, 2022. This Court had directed that the petitioner must move the Commission with a request to initiate the election process, in accordance with law. The Commission was directed to hear out all the stakeholders, and pass necessary orders with regard to holding of the election. Some of the then existing directors and members were allowed to intervene by this Court and an order was passed on November 30, 2021, relevant portion of which, is as follows:-
"Thus, I do not find any reason not to allow the petitioners liberty to move the Commission with a 6 request to initiate election process in accordance with law. However, as there are several respondents in this litigation and several matters are pending before different courts, this Court feels it is only fair that while disposing of the application to be filed by the petitioners with a request to the Commission for starting the election process, all the respondents and Board members must be heard and allowed to file their written version as also make oral submissions.
It is expected that if the petitioners make the representation within a period of three days, the same shall be disposed of by the Commission upon hearing all the parties to this litigation within two weeks thereafter. The commission has 40 days time to make the preparation for the election as per law.
The notice of hearing shall be given by the Commission, 48 hours in advance to the petitioners as also the respondent nos. 7 and 8. Notice shall also be sent to the individual Board members by the petitioner No.2 and the commission informing them about the hearing and all the parties will be at liberty to appear before the Commission and make their respective submissions. The names of the individual Board members shall be supplied by the learned advocate on record for the petitioner to Mr. Sureka, learned advocate for the Election Commission.
This order shall not prevent the petitioners from approaching the Hon'ble Division Bench with the prayers in this writ petition with regard to the appointment of a returning officer for the election process to start."
The Commission passed an order, inter alia, holding that the election should be held.
Several litigation had been initiated by the respective parties, with regard to the election of the said Bank. The 7 issue went up to the Hon'ble Division Bench in MAT 1011 of 2021 and MAT 1012 of 2021. The Hon'ble Division Bench initially stayed the appointment of the Special Officer under Section 36 of the said Act. By a subsequent judgment dated April 20, 2022, the stay was vacated. Their Lordships expressed a desire that the election for the constitution of the board of directors should be held by the Election Commission at the earliest. Such order was never challenged by any of the parties. While passing the aforementioned judgment, Their Lordships specifically held that the intention of the Court was never to extend the life of the board. The only reason for which the stay had been granted at the particular stage was due to the failure of the Government to obtain a clarification of the order dated January 20, 2022, before steps were taken for appointment of the Special Officer under Section 36 of the said Act.
Mr. Dhar's client once again moved the High Court for expeditious completion of the election. A learned Co- ordinate Bench directed as follows:-
"Hence, WPA No.8429 of 2022 is disposed of by directing the respondent nos.3 and 4 to conclude the election process for the new Board of Directors of the Contai Co-operative Bank Limited, having its office at Village & Post Office: - Contai, District:
Purba Medinipur, Pin - 721401, through the Special Officer, within a reasonable period, preferably by October 15, 2022."
Mr. Dhar is allowed to intervene in the matter has taken serious objection to the writ petition by citing the 8 observations of the Hon'ble Division Bench. According to Mr. Dhar, the law and the direction of the Hon'ble Division Bench are crystal clear and the question of asking the Special Officer, who has been appointed under Section 36, to conduct the election would be in violation of the order of the Hon'ble Division Bench and also the Statute.
It is not in doubt and it cannot be disputed by any of the parties that the election of the co-operative society has to be conducted by the Co-operative Election Commission. The procedure has been laid down in the rules and the regulations. A Returning Officer or an Assistant Returning Officer has to be appointed for the purpose. Accordingly, the Assistant Returning Officer was appointed and the said Assistant Returning Officer published the notification dated May 24, 2022 with the complete schedule and programme of the election.
Mr. Majumder's contention that the Court had directed that the election must be held though the Special Officer on the prayer of Mr. Dhar's client, cannot be accepted.
In this regard, reference is made to Section 36(1) of the said Act, which provides as follows:
"36. Expiry of term of board and appointment of special officer.-(1) Notwithstanding anything contained elsewhere in this Act in any other law for the time being in force, where election of the board of directors of any Co-operative Society has not been held within a period of thirty-six months from the date of their election where such election was held before the date of commencement of this Act or 9 within a period of sixty months from the date of their election under sub-section (1) of section 29 of this Act, the directors of the board of such Co-operative Society shall be deemed to have vacated their offices immediately on expiry of the period of thirty-six months from the date of their election where such election was held before the date of commencement of this Act or sixty months from the date of their election under sub-section (1) of section 29 of this Act, as the case may be, and the State Government shall, thereupon by notification, appoint special office from amongst its officers for managing the affairs of the Co-operative Society for a period not exceeding six months from the date of such expiry of the period."
Section 36(1) provides that in case the election of the board of directors of any co-operative society is not held within the prescribed time under the said sub-section, the State Government shall, thereupon by notification appoint a Special Officer from amongst its officers for managing the affairs of Co-operative Society for a fixed period. The Special Officer shall arrange for the conduct of election. The law provides for an interim arrangement by appointment of a Special Officer to discharge the functions of the Board with a further obligation upon the Special Officer to arrange for the election so that the affairs of the society could go back to the newly elected Board. This means that the Special Officer should take an initiative to ensure that the election is held as per law and by the authority empowered by law.
Accordingly, as the term of the board had expired, the Assistant Registrar of the Co-Operative Society, by a notification dated February 7, 2022 was appointed as the 10 Special Officer. According to the said notification, the Special Officer was directed to take necessary steps under the supervision, directions and control of the Co-operative Election Commission, West Bengal for constitution of the newly elected Board of Directors as per law and to exercise all powers and perform all the duties of the Board of Directors of the bank subject to the control and direction of the Registrar of Co-operative Societies, West Bengal.
The law provides that such Special Officer should be appointed to manage the affairs of the co-operative society in the absence of the Board of Directors. The Special Officer shall also arrange for conduct of election. The fact that the election has to be conducted, was already decided by the Commission, pursuant to a direction of this Court dated November 30, 2021. The Commission observed that there was no impediment in holding the election in accordance with law. The Hon'ble Division Bench also directed that the Commission must hold the elections. Another coordinate Bench held that the election must be held by the Commission and its officer through the Special Officer. Thus, in the prima facie opinion of the Court, the law empowers only the West Bengal Co-operative Election Commission to hold the election and take all necessary steps with regard to the control and conduct of the election. The Special Officer, who has been empowered to manage the affairs of the society in the absence of the Board of Directors is bound by law to arrange for the conduct of the election, so that the charge may be handed over to the newly constituted Board. The 11 Special Officer has not been empowered to assume the role of the Election Commission. On the contrary, the Special Officer is to ensure that the election is conducted within his tenure as specified by law. In this case, there was no such necessity for the Special Officer to initiate the process as this Court had passed various orders upon the Commission and the Commission had already decided to hold the election. The process was initiated before the Special Officer was appointed. There are multiple orders of this Court directing the Commission to hold the election. The law also provides that if the board is not constituted within the tenure of the Special Officer, in that case, the State Government may take such steps as per Sub-Section 7 of Section 29 of the said Act.
Thus, the interpretation of Mr. Majumder that the Special Officer must start the process of election including publication of all notifications and schedules of such elections, is prima facie misconceived. The interpretation as given by Mr. Majumder would amount to re-writing the Statute as also the Rules and Regulations. In this case, the Special Officer, being in-charge of the management is only to follow the instructions of the Commission and assist the Commission as and when required and called upon, in order to facilitate the election, and provide the necessary infrastructure, which would have otherwise been done by the outgoing Board. Not in all cases, is a Special Officer appointed. Only when the tenure expires and no election is held, the Special Officer is appointed as an interim measure. 12
Thus, this Court is, prima facie, of the view that the notification was rightly issued by the Assistant Returning Officer, who was authorized to issue the same.
In view of the interim order, which was passed by the Court, the schedule and dates as fixed by the notification, could not be adhered to. The programme was thus disrupted by the stay order of the Court. The prayer for extention of the interim order is denied. There is no scope to stay the process of election. The notification is set aside, as the same has partly expired due to efflux of time.
Hence, this Court grants leave to the Commission to issue a fresh notification in the same lines as the one dated May 24, 2022 by preparing a revised schedule and programme. The Special Officer can assist the Commission as and when called for, but the law does not empower the Special Officer to take any decision or publish any notification with regard to the conduct of the election.
The observations made hereinabove are for the disposal of the prayer for interim stay. All issues are kept alive, to be decided on affidavits.
The election shall be held according to the schedule to be published by the Commission afresh, on the basis of this order. The result of the election shall be published. The board shall be constituted and office bearers elected. However, all such steps and election of the delegates, the Board of Directors and the office bearers, as the case may be, shall be subject to the result of the writ petition. 13
Affidavit-in-opposition to the writ petition by the State as also by the Election Commission to be filed within a period of four weeks; reply thereto, if any, be filed within two weeks thereafter.
Affidavit-in-opposition to CAN 1 of 2022 be filed within a period of four weeks; reply thereto, if any, be filed within two weeks thereafter. Liberty to mention for hearing.
The Election Commission shall take expeditious steps and ensure that the election is completed as per the revised schedule, and as per the order dated May 18, 2022.
Parties to act on a server copy of this order.
(Shampa Sarkar, J.)