Calcutta High Court (Appellete Side)
Sri Partha Sarothi Adhikary & Ors vs The State Of West Bengal & Ors on 5 December, 2025
2025:CHC-AS:2208
Form No. J(2)
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present: The Hon'ble Justice Reetobroto Kumar Mitra
W.P.A.26822 of 2025
Sri Partha Sarothi Adhikary & Ors.
Vs.
The State of West Bengal & Ors.
For the petitioners : Mr. Tanmoy Mukherjee,
Mr. Sobhon Majumder,
Ms. Priyanka Sen.
For the Respondent
No.2 : Mr. Ankit Sureka,
Mr. Biplob Das,
Mr. Asis Dutta.
For the Respondent
Nos.5 & 6 : Bharat Bhushan.
Mr. Atindranath Misra.
For the Respondent
No.7 : Mr. Srijan Nayak,
Ms. Rituparna Maitra.
Heard on : 02.12.2025 , 4.12.2025 and 05.12.2025
Judgment dictated
in open Court on : 05.12.2025
Reetobroto Kumar Mitra, J.:-
1. The writ petitioners are aggrieved by a clause in the nomination form which restricts the nomination of a person intending to 2 2025:CHC-AS:2208 participate in the election process to the Board of the respondent No.5.
2. The parameters set forth in the nomination form in Clause 'C' deter a person from filing his nomination, unless he is qualified under the relevant provision of Section 10-A in sub section (2-A) in Clause (i) of the Banking Regulation Act, 1949 (hereinafter referred to as the 'Act of 1949' ). The impugned clause appearing in the nomination form as Clause 'C' is set out hereunder:-
"I have not been served as a DIRECTOR for two consecutive terms/ 10 years at a stretch at any previous board for The Santragachi Co-operative Bank Ltd. u/s.10A, in sub-section (2A) in clause (i) of The Banking Regulation Act (BR Act), 1949 read with Gazette notification REGISTERED NO.DL-(N) 04/0007/2003-25 The Banking Laws Amendment Act, 2025 (no.16 of 2025) dated 15th April, 2025."
3. The facts in short are that the petitioners claim to be elected delegates from different zones and are hence entitled to file their nomination for the board of directors of the respondent no. 5. The petitioners allege that, barring the hurdle of Clause "C" of the nomination form, they are otherwise entitled to participate in and contest the election.
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4. Mr. Tanmay Mukherjee appearing for the petitioner has made elaborate submissions. The crux of his submission may be summarised as under:-
a. The restrictive clause in the nomination form is based on the Banking Regulation Act 1949 (hereinafter the Act of 1949). Such clause has no application to the election to the board of directors of respondent no. 5.
b. If the Act of 1949 has no application to the election of the respondent no. 5, in that event, the restriction imposed ought not to be included in the nomination form. Thus, such restriction is arbitrary, inapplicable and ought to be set aside. c. He has placed reliance on the master circular of the Reserve Bank of India on Board of Directors of Urban Cooperative Banks (hereinafter "UCB") dated 2nd July, 2012 and in particular Clause 1.2 thereof.
d. He has placed reliance on a Special Bench decision of the Hon'ble Supreme Court of India reported in 2020 (9) SCC 215 (Pandurang Ganpati Chaugule vs Vishwasrao Patil Murgud Sahakari Bank Ltd.). The said decision, though pertains to a 4 2025:CHC-AS:2208 matter in relation to a provision of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter SARFAESI Act, 2002), the ratio thereof will be applicable to all banks in so far as the Union and the State list is concerned, as set forth in the 7th Schedule of the Constitution of India.
5. Mr. Srijan Nayak appearing for the respondent no. 7 has also made elaborate submissions, which may be summarised as under:-
a. The provisions of the Act of 1949 are applicable to the present case and to the respondent no. 5 in its entirety and particularly Section 10A of the Act as amended.
b. The provisions of the West Bengal Co-operative Societies Act, 2006 do not have any restrictive provision in so far as the election to the board of a Co-operative bank is concerned. c. The provisions of Section 10A were initially omitted from application to the co-operative societies, though, subsequently, by an amendment in 2020, such provision has been made applicable.5
2025:CHC-AS:2208 d. Therefore, there is no reason as to why the restriction provided in Section 10A(2A)(i) of the Act of 1949 will not apply to the respondent no. 5.
6. Mr. Bharat Bhushan appearing for the respondent no. 5 and 6 has made his submissions, which may be summarised as under:-
a. The provision of Section 10A(2A)(i), which reads as "no director of a banking company, other than its Chairman or whole- time director, by whatever name called, shall hold office continuously for a period exceeding eight years" was amended on 15th April, 2025 to read as "no director of a banking company, other than its Chairman or whole-time director, by whatever name called, shall hold office continuously for a period exceeding eight years[and ten years in case of a co-operative bank];"
b. The decision of the Hon'ble Supreme Court which was passed on 5th May, 2020 did not have the occasion to consider the amended provision of Section 10A(2A)(i) as amended in April 2025.
c. Therefore, the restriction of 10 years was included specifically in case of a co-operative bank. 6
2025:CHC-AS:2208 d. He has also placed reliance on the Reserve Bank of India (Urban Co-operative Banks-Governance) Directions dated 28th November, 2025 to argue that the urban co-operative bank shall comply with the eligibility, qualification and disqualification criteria for directors as prescribed in the Act of 1949 and the co-operative laws governing it.
7. Mr. Ankit Sureka has also made his submissions on behalf of the respondent no. 2 and 4 that there is no restrictive clause in so far as the election to the board of a cooperative society is concerned under the West Bengal Cooperative Societies Act and therefore, the provisions that have to be culled out from the Act of 1949, which equally apply to the election process of a cooperative society.
8. I have heard learned counsel appearing for all the parties and considered their submissions. I have also gone through the records of the case as well as the decisions cited from the Bar.
9. Even though the point was argued by Mr. Srijan Nayak and Mr. Ankit Sureka, I am alive to the decisions of the Hon'ble Supreme Court of India which bar a Writ Court from interfering in an election process once it has commenced. However, such decisions 7 2025:CHC-AS:2208 come with a rider that interference may be essential in the case of an unjust executive action, which is why the matter was entertained. In view of the fact that the petitioners had urged that the inclusion of Clause C in the nomination form amounted to an unjust executive action, on the basis that such clause was not applicable to the petitioner at all.
10. The only issue which falls for consideration is whether the Act of 1949 will apply to the cooperative bank and particularly Section 10A(2A)(i) thereof.
11. The issue has several nuances connected with it. The respondent no. 5 is a cooperative society which runs a bank.
12. The 7th Schedule of the Constitution of India has three specific entries with which we are presently concerned.
13. The first is contained in List I (Union List), Entry 43. The second is in respect of Entry 45 of the same list, and the third is of List II (State List), Entry 32.
14. Entry 43 of List I deals with incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including cooperative societies. 8
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15. Entry 45 of List I deals with banking. Entry 32 of List II deals with incorporation, regulation, and winding up of corporations (other than those specified in List I), universities, unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.
16. The bank which is run as part of a cooperative society has two distinct elements to it. The first element is that it is engaged in providing various banking services and is an integral part of the banking system as defined in the Act of 1949. The second aspect relates to the co-operative society which runs such banking business. The two are separate and distinct, as has been provided by the Constitution in the separate entries in the Union List and the State List. As a banking company, by virtue of Section 56(a) of the Act of 1949, a reference to a banking company will include the banking business of the cooperative society as well.
17. The cooperative societies are guided by Entry 32 of the State List for the purpose of regulation. Co-operative societies have been left outside the realm of the Union List and squarely covered by the State List.
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18. At the same time, the banking business of that same co-operative society will be guided by a Central Act made under List I, Entry
43.
19. The Act of 1949 was inapplicable to cooperative societies until the amendment by way of Act 39 of 2020. By the said amendment, Section 10A (2A)(i) was made applicable to the cooperative banks. From the statement of objects and reasons of Act 39 of 2020, it is clear that such amendments were considered necessary to the Act of 1949 to provide for better management and proper regulation of cooperative banks, to ensure that the affairs of the co-operative banks are conducted in a manner that protects the interest of the depositors "by increasing professionalism", enabling access to capital, "improving governance", and "ensuring sound banking"
through the Reserve Bank of India. It is with this avowed purpose that Act 39 of 2020 was introduced and ultimately passed.
20. It is clear from the statement of objects and reasons of the amendment that the intent of the legislature to make such provisions of Section 10(A) applicable to co-operative banks was to enhance banking facilities, which come within the realm of the banking business conducted by the cooperative societies. This falls squarely under List I of the Seventh Schedule of the Constitution 10 2025:CHC-AS:2208 of India. The idea was not to exercise any control or to regulate the cooperative societies but to "ensure sound banking".
21. The amendment by Act 16 of 2025, by which the phrase "and 10 years in case of a cooperative bank" was inserted, became applicable from 1st August, 2025, with the same intent and object to "ensure sound banking". This also falls within the realm of the banking business conducted by the cooperative societies. A bare perusal of Section 10(A) of the Act of 1949 makes it clear that the legislative intent was to ensure more proficient banking by way of persons on the board of directors who have special knowledge and practical experience and would facilitate the banking business of the cooperative societies. Thus, the regulation of the banking business, as stipulated in List I, is the exclusive domain of the Union and covers all banks, including cooperative banks. Accordingly, the amendment introduced by Act 16 of 2025 falls squarely within the realm of the Union List. It cannot, therefore, be said that this falls within Entry 32 of List II (State List).
22. These amendments are squarely applicable to the banking business conducted by the cooperative societies. 11
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23. The amendment clearly recognises the distinction between the business of banking and the entity that performs the banking function. The legislature has clearly acted with an intent to regulate the banking affairs of the society and in the process provided for certain parameters by way of these amendments to further the cause of the banking business.
24. Mr. Mukherjee has argued that the amending Act 16 of 2025 is applicable only to Multi-State Cooperative Societies (hereinafter "MSCS"). Therefore, cooperative societies registered under a state, not being MSCS, are not governed by the amending Act 16 of 2025
25. The Constitution of India has clearly recognized and separately demarcated applicable provision of the Act of 1949 to the MSCS. Article 243 ZL of the Constitution of India clearly stipulates in the second proviso that the provisions of the Act of 1949 shall apply in the case of a Co-operative Society carrying on the business of banking. No such differentiation or distinguishing feature has been made in the provision of Section 10-A(2-A)(i), as was argued by Mr. Mukherjee, appearing for the petitioners. The amendment by way of Act 16 of 2025, squarely applies to a Co-operative Bank as and by way of a means to ensure better banking business. 12
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26. The interpretation afforded by Mr. Mukherjee on behalf of the petitioners that Section 10-A(2-A)(i) in so far as the amendment by way of Act 16 of 2025 is concerned, applies only in MSCS and other co-operative societies is not, therefore, supported by any such provision and such an interpretation, sought to be given by the petitioners would render the entire object of the amendment, as contemplated by the legislature, nugatory.
27. This also finds support from the fact that the third proviso to Article 243 ZL of the Constitution of India, makes a distinction in so far as a MSCS and a co-operative society is concerned. There is no such distinction made in the amendment by way of Act 16 of 2025 to the aforesaid provision of Section 10-A(2-A)(i) of Act of 1949.
28. The decision of the Hon'ble Supreme Court, though prior to the amendment Acts 39 of 2020 and 16 of 2025, has laid down broad parameters, which have been followed in these amendments and are in no way violative of the interpretation given by the Hon'ble Supreme Court of India in the decision of Pandurang Ganpati Chaugule (supra). In the said decision, the Hon'ble Supreme Court of India held that in so far the banking business is concerned, even cooperative banks are covered under Entry 43 of 13 2025:CHC-AS:2208 List I of the Seventh Schedule of the Constitution of India. However, all other matters of the cooperative society are guided by Entry 32 of List II of Constitution of India.
29. Thus, the parameters set forth in Clause C of the nomination form are within the realm of the List I as it is made to ensure sound banking as contemplated under the amendment act 39 of 2020 and 16 of 2025. and are applicable to all persons seeking nomination to contest for the post of director in such banks run by co-operative societies.
30. The directions are clearly in consonance with the decisions of the Hon'ble Supreme Court of India and there is no dichotomy between the judgment of the Supreme Court of India and the amendments introduced by the legislature to the Act of 1949.
31. Alternatively, Mr. Tanmay Mukherjee has sought to impress that even if this clause was applicable, the petitioner would not be covered under such clause as they were not continuously directors for 10 years, having become directors for the second time for a period of 5 years after a duly conducted election process. His argument that the election process is the break in the continuity and hence two successive terms of 5 years each on the board of 14 2025:CHC-AS:2208 directors does not fall within the mischief of 10 years as specified in Section 10A(2A)(i) is unacceptable. The 10 years contemplated in the Act of 1949 refers to a period of 10 years taking into account a person who has already been a director for 2 successive terms. The petitioners are thus disentitled under Section 10A (2A)(i), as they have been in office for 2 successive terms of 5 years each, aggregating to 10 years, and are hit by the aforesaid provision of the Act of 1949.
32. For the reasons aforestated, the writ petition fails and is, accordingly, dismissed.
33. The respondents are directed to conduct the election in the process and in the manner entailed in the schedule published by it and to ensure that the free and fair election is conducted in respect of the respondent No.5.
34. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Reetobroto Kumar Mitra, J.)