Calcutta High Court (Appellete Side)

The Secretary vs Shri Prem Singh & Ors on 19 January, 2021

1


            IN THE HIGH COURT AT CALCUTTA
              CIVIL APPELLATE JURISDICTION
                     APPELLATE SIDE
             (CIRCUIT BENCH AT PORT BLAIR)
Before:
The Hon'ble Justice Subrata Talukdar
                   and
The Hon'ble Justice Hiranmay Bhattacharyya

                     MAT 818 of 2020
                            With
                       CAN 1 of 2020
    The Secretary, Consumer Cooperative Stores Limited
                            Vs.
                   Shri Prem Singh & Ors.

For the Appellant            : Mr. Soumya Majumder
                               Ms. Sanjukta Dutta ....... Advocates

For the Respondent           : Mr. Krishna Rao... Advocate for

Respondent nos. 5 to 8

Ms. Anjili Nag ...... Advocate for the Private Respondents/writ petitioners

Heard on : 15.01.2021

Judgment on : 19.01.2021

Hiranmay Bhattacharyya, J.:

The Secretary of a Consumer Co-operative Stores has preferred the

instant intra court mandamus appeal challenging the order dated December

14, 2020 passed by a learned Single Judge in WPA 10410 of 2020.

By the order impugned the learned Single Judge directed the

Andaman and Nicobar administration to appoint an Administrator for

assisting the Deputy Registrar in conducting the election and also to run the

day to day affairs of the society until constitution of a newly elected Board.

The facts giving rise to the present appeal are as follows- The writ

petitioners claim to be the shareholder members of the Consumer Co-

operative Stores (for short the "CCS") which is registered under the

Andaman and Nicobar Islands Co-operative Societies Regulation 1973 (for

short the "1973 Regulation"). The writ petitioner claims that the last election

was held in June, 2015 and as per the Bye-Laws approved by the Registrar

of the Co-operative Societies an election is required to be conducted after

every five years. The writ petitioner further claims that the election was

scheduled on June 30, 2020 but due to the pandemic the tenure of the

committee was extended twice for a period of three months each. The

Registrar of Co-operative Societies issued a notice dated November 24, 2020

to the Secretary, CCS asking him to hold the election on December 20, 2020

on the basis of pre-updated list consisting of 19,000 members

approximately. The writ petitioners filed the instant writ petition praying for

a writ in the nature of certiorari quashing the notice dated November 24,

2020 and a mandamus directing the appellant herein to hold election in

terms of the updated list.

The learned Single Judge disposed of the said writ petition directing

the Andaman and Nicobar Administration to appoint an Administrator for

the purpose of assisting the Deputy Registrar in conducting the election.

The learned Single Judge held that the existing Board shall cease to

function forthwith and the Administrator shall run the day to day affairs of

the society and shall not take any major policy decision thereunder until

constitution of a newly elected Board.

Being aggrieved, the respondent no. 5 in the writ petition, has

preferred the instant appeal.

Mr. Soumya Majumder, the learned advocate for the appellant,

contended that the last election for constitution of the committee was held

in June, 2015. However, due to the pandemic, the tenure of the Board was

extended initially up to September, 2020 and thereafter till the end of

December, 2020. He further contended that the Board of Directors wrote to

the administration as well as the Registrar of Co-operative Societies to allow

the eligible voters to cast their votes at the polling stations where their

identity and membership will be scrutinised before they cast their votes. Mr.

Majumder contended that the Deputy Registrar was justified in issuing the

notice dated November 24, 2020 asking the appellant herein to conduct the

election on the basis of the pre-updated list subject to condition that the

member shall be required to produce identity cards prescribed by the

Election Commission of India during the last general election as a proof of

their identification.

Mr. Majumder further contended that in view of the pandemic an

updated list of members could not be prepared and since the life of the

existing committee was till the end of December, 2020, the Deputy Registrar

was justified in fixing the date of election on December 20, 2020. Mr.

Majumder further contended that the principal objection of the writ

petitioners against holding election on the basis of pre-updated list is that

the names of those members in the old list who are dead or unknown can be

impersonated. He contended that such objection is without any basis as the

members are required to produce the identity cards prescribed by the

Election Commission of India at the time of casting their votes as the voting

is only by physical casting and there is no provision for proxy voting or

casting of votes by postal ballots.

Mr. Majumder further contended that the order of the learned Single

Judge directing the Andaman Administration to appoint an Administrator

amounts to supersession of the existing committee. He contended that

Regulation 27 of the 1973 Regulation provides the grounds for which a

committee may be removed as well as the mode of its removal. He contended

that an opportunity is to be given to the committee to state its objections

against the opinion of the Registrar for supersession of the committee on the

grounds mentioned in Regulation 27 of the 1973 Regulation and thereafter

pass an order for removal of the committee upon giving an opportunity of

hearing. According to Mr. Majumder, the principles of natural justice is

inbuilt in the said Regulation. He contended that the appointment of an

Administrator is not a natural consequence upon expiry of the life of a

committee. He further contended that supersession of a committee is a

stigmatic one insofar as the members of the said committee shall be deemed

to have acted in a manner prejudicial to the interest of the society or its

members.

Mr. Rao, learned advocate, appears for the respondent nos. 5 to 8, i.e.

the Andaman and Nicobar Administration. He supported the order passed

by the learned Single Judge and contended that pursuant to such order an

Administrator has been appointed. And there is no infirmity in the judgment

and order impugned.

Ms. Anjili Nag, the learned advocate for the writ petitioners/

respondent nos. 1 to 4 in the instant appeal, supported the order passed by

the learned Single Judge. She contended that the life of the erstwhile

committee has expired by efflux of time. She contended that in terms of the

Bye-Laws, an election is required to be conducted after every five years. The

last election was held in June, 2015. The election that was scheduled on

June 30, 2020 could not be held due to the pandemic and the tenure of the

committee was extended twice for three months each till the end of

December, 2020. She contended that since the life of the committee expired,

the learned Single Judge was justified in directing the Andaman

Administration to appoint an Administrator for the purpose of conducting

the election and also to run the day to day affairs of the society until

constitution of a newly elected Board. She contended that affording an

opportunity of hearing to the members of the committee would lead to a

useless formality in the instant case as the members of the committee

cannot be said to have suffered any prejudice in the instant case as the life

of the Managing Committee has already expired. In support of such

contention, Mrs. Nag relied upon a judgment of the Hon'ble Supreme Court

of India in the case of City Montessori School vs. State of U.P. reported at

(2009) 14 SCC 253. Mrs. Nag, in her usual fairness, submitted that an

observation may be made by this Court that the direction of the learned

Single Judge that the existing Board shall cease to function forthwith shall

not be construed to be a stigmatic one.

We have heard the learned advocates for the respective parties and

have perused the materials on record.

The Bye-Laws provide that the members of the Managing Committee,

except the nominated members, shall be elected for a period of three years

among the members. It has been further provided that if for any reason the

election could not be held before the expiry of the tenure of the said

committee the life of the Managing Committee may be extended for a further

period of three months with the prior approval of the Registrar.

The Bye-Laws of the CCS provides that all the members of the

Managing Committee shall vacate their office on expiry of the terms of three

years and the extended period of three months, if any, or from the date of

constituting the new committee whichever is earlier.

The last election for constitution of the Managing Committee was held

in June, 2015. Though in the Bye-Laws, a copy of which has been annexed

to the writ petition, it has been provided that the members of the Managing

Committee shall be elected for a period of three years, but it is not in

dispute, that the said Bye-Laws was subsequently amended and the said

period of three years has been enhanced to five years. Thus, the election for

constitution of the Managing Committee was scheduled on June, 2020. It is

also the admitted position that the tenure of the committee which expired in

June, 2020 was extended initially up to September, 2020 and finally till the

end of December, 2020.

Though the Bye-Laws provide for one extension of the life of the

Managing Committee for a period of three months with the prior approval of

the Registrar, but in the instant case it is the admitted position that the life

of the Managing Committee was extended twice for a period of three months

each. Thereafter the life of the erstwhile Managing Committee stood expired

due to efflux of time. Once the original term of five years with two extensions

of three months each have expired in the meantime, according to the

provisions of the Bye-Laws, all the members of the Managing Committee

shall vacate their office upon the expiry of such term. Thus, in view of such

specific mandate of the Bye-Laws the members of the Managing Committee

do not have any right to claim themselves as the members of such

committee after expiry of such term. In other words the members of the

Managing Committee cannot continue as members of such committee even

after the expiry of the original term and the extension thereof as a matter of

right merely by taking advantage of the fact that the election for constitution

of the new Managing Committee did not take place.

Rule 27 of the 1973 Regulations empowers the Registrar to remove the

committee by an order in writing after giving the committee an opportunity

to state its objections. Since in the instant case the life of the erstwhile

committee expired due to efflux of time and the life of a committee cannot be

deemed to be extended automatically upon expiry of its term, there is no

question of removal of the said committee.

As the Managing Committee cannot be said to be in existence after

expiry of its life by efflux of time, there is no necessity to comply with the

requirement of giving an opportunity to the members of the committee to

state its objection as provided in Regulation 27 of the 1973 Regulations.

Such right to raise an objection is available only in case of

supersession/removal of the committee.

Regulation 27 of the 1973 Regulation also empowers the Registrar to

order fresh elections of the Committee and to appoint Administrators for the

purpose of management of the affairs of the society. Regulation 27

empowers the Administrator to exercise all or any of the functions of the

committee or of any officer of the society and take all such actions as may

be required in the interest of the justice.

Thus, Regulation 27 contemplates appointment of an Administrator

for the purpose of conducting the elections as well as to manage the affairs

of the society when the office of the Managing Committee becomes vacant.

It is an admitted position that election for constitution of the

Managing Committee is long overdue. The same is to be conducted at the

earliest. An election is to be conducted on the basis of a list of bona fide

members having a right to cast vote. Such list undoubtedly has to be an

updated one and it is inconceivable that an election is to be conducted on

the basis of a pre-updated list. The old list may contain the names of

persons who are either dead or have become ineligible to vote otherwise.

There may also be cases where some persons have become members after

the date of publication of the last updated list. Only the persons whose

names are included in the list of members are permitted to cast their vote in

the election. Such persons who, though eligible to cast their vote in the

ensuing election, may not be allowed to cast their vote as their names do not

appear in the pre-updated list. Thus, in order to ensure a free and fair

election and to protect the voting rights of the members of the CCS the list of

the members who are entitled to vote in the ensuing election is required to

be updated and an election can be held only on the basis of such updated

list.

An identity card issued by the Election Commission of India may be a

valid document to prove the identity of a person entitled to vote in the

general election but the same is not a substitute of a voters' list or an

Electoral Roll in respect of a constituency. The names of the persons eligible

to vote in the general election in a particular constituency are enrolled in the

electoral roll. Only the persons whose names are appearing in the electoral

roll are allowed to cast their votes. The identity card is the document to

prove that the identity of the person entitled to cast his vote. A person whose

name appears in the Electoral Roll of a particular constituency in the

General Elections cannot cast his vote in another Constituency merely

because an Identity Card has been issued by the Election Commission of

India in his favour. Thus, the requirement of production of identity cards

prescribed by the Election Commission of India during the last general

election cannot be a substitute of an updated voter list as an updated voter

list is a pre-requisite for conducting any election including the election of the

instant CCS.

The appellant herein being the Secretary of the CCS, for reasons best

known to him, chose not to appear before the learned Single Judge at the

time of hearing of the writ petition.

The learned Single Judge in the facts and circumstances of the

instant case, thought fit that an Administrator be appointed for conducting

the election and for running the day to day affairs of the society until

constitution of a newly elected Board. Since we have already held that an

election has to be held on the basis of an updated list, we are of the view

that the learned Single Judge was justified in the instant case in directing

the Administrator to ensure that the list of members is updated until the

date of issuance of a fresh notification for election.

Now, let us deal with the judgment relied upon by Mrs. Nag. In City

Montessori (supra) it was held that the court despite opining that the

principle of natural justice was required to be followed may however decline

grant of a relief on the premise that the same would lead to a useless

formality or, that the person concerned in fact did not suffer any prejudice.

The said judgment has no manner of application to the facts of the instant

case as in the instant case we have held that there is no requirement of an

opportunity of hearing to be given to the members of the erstwhile

committee as the life of such Committee stood expired by efflux of time and

the Committee was not removed by an order in writing by the Registrar.

As we have already held that the erstwhile Managing Committee is no

longer in existence and the same was not removed by the Registrar, the

apprehension of the appellant that the appointment of an Administrator

amounts to a stigma upon the members of the Committee is without any

basis.

For the reasons as aforesaid we are of the view that the impugned

judgment and order does not suffer from any infirmity warranting

interference by us in an intra-court mandamus appeal. There is no merit in

the instant appeal.

Accordingly, MAT 818 of 2020 is dismissed thereby affirming the

order dated December 14, 2020 passed by the learned Single Judge in WPA

10410 of 2020. In view of dismissal of the appeal, the application being CAN

1 of 2020 has become infructuous and the same is also disposed of.

Since we are informed that an Administrator has already been

appointed by the Lieutenant Governor, Andaman and Nicobar Island, the

said Administrator is directed to perform the duties as indicated in the order

dated December 14, 2020 keeping in view the time period indicated by the

learned Single Judge in the order dated December 14, 2020 for completion

of the election process.

There shall be, however, no order as to costs.

Urgent photostat certified copies, if applied for, be supplied to the

parties upon compliance of all formalities.

(Hiranmay Bhattacharyya, J.)

Subrata Talukdar, J:

I am in respectful agreement with the reasons discussed by my Ld.

Brother in his judgement and order and concur with his conclusions. I also

take this opportunity to add a few lines.

Regulation (for short "Regn.") 27 of the Regulations (supra) speaks of

supersession of committee. The grounds for supersession are stated in Regn.

27(1). The action which the Registrar of Cooperative Societies may take

pursuant to an act of supersession are connected with the conjunction and

to Regn. 27(1) by way of incorporating Regn. 27(1)(a) and 27(1)(b).

Relevant for this discussion are also Regn.27(3) and Regn.27(4) of the

said Regulations which respectively speak of the powers of the Administrator

that cover all or any of the functions of the committee subject to the control of

the Registrar and, at the expiry of his term of office arrange for the

constitution of a new committee.

For the complete benefit of this discussion it will be useful to

reproduce below Regn. 27 (1), (1)(a), (1)(b), (3) and (4) (supra):-

"27. Super-session of committee:- (1) If, in the opinion of the Registrar, the committee of any co-operative society persistently makes default or it is negligent in the performance of the duties imposed on it by this Regulation or the rules or bye-laws, or commits any act which is prejudicial to the interest of the society or its members, the Registrar may, after giving committee an opportunity to state its objections, if any, by order in writing remove the committee; and

(a) Order fresh election of the committee; or

(b) Appoint one or more administrators, who need not be members of the society, to manage the affairs of the

society for such period not exceeding one year as may be specified in the order which period may at the discretion of the Registrar, be extended from time to time, so however, that the aggregate period does not exceed three years.

(2) .....................

(3) The administrator shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have power to exercise all or any of the functions of the committee or of any officer of the society and take all such actions as may be required in the interest of the society.

(4) The Administrator shall, at the expiry of his terms of office, arrange for the constitution of a new committee in accordance with the bye-laws of the society.