Sukumar Bera vs The State Of West Bengal & Ors
2022 Latest Caselaw 3070 Cal

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.

According 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

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

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

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

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

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

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

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

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

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.

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.

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.)