Sri Subrata Roy & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 6964 Cal

 23 & 24
11.10.2023

                  In The High Court At Calcutta
                 Constitutional Writ Jurisdiction
                         Appellate Side


                       WPA 23439 of 2023

                      Sri Subrata Roy & Ors.
                                v.
                  The State of West Bengal & Ors.
                               with
                       IA No. CAN 1 of 2023


             Mr. Bikash Ranjan Bhattacharya, Sr. Adv.,
             Mr. D.K. Sengupta
             Ms. Sweta Saha
                              ... For the petitioners

             Mr. Srijan Nayak,
             Ms. Rituparna Maitra
                   ... For Co-operative Election Commission

             Mr. P.K. Roy,
             Mr. Biplob Das.
                        ... For the respondent nos. 2-4.

Mr. Saptansu Basu, Sr. Adv.

Mr. Ashit Kumar Chakraboty Mr. Sunanda Mohan Ghosh ... For the added respondents

Mr. Jayanta Kumar Mitra Mr. Ankit Sureka Mr. Asis Dutta ...For the respondent no. 9

With

WPA 23657 of 2023

Kamales Chakrabarti & Ors.

v.

The State of West Bengal & Ors.

Mr. Pabitra Charan Bhattacharjee ...For the petitioners

Mr. Lalit Mohan Mahata Mr. Rudranil De ...For the State

Mr. P.K. Roy Mr. Biplob Das ...For the respondent no. 3

Mr. Srijan Nayak Ms. Rituparna Maitra ... For Co-operative Election Commission

The act of the Commissioner, Cooperative Election

Commission in holding election of the Tamluk Ghatal

Central Cooperative Bank Limited by appointing special

officers in the Primary Cooperative Societies, without

holding election of the Primary Cooperative Societies, is

under challenge in the present writ petitions.

The facts, issues and points of consideration in both

the writ petitions being similar, both the writ petitions are

taken up for consideration analogously and a common

order is being passed.

The petitioner no. 1 in the matter of Subrata Roy &

Ors. was the Director and officer bearer of the Tamluk

Town Cooperative Credit Society Limited. Petitioner no. 2

was the delegate of Kumarchak SKUS Limited, petitioner

no. 3 was the delegate of Kabiguru Wholesale Cooperative

Society Limited, petitioner no. 4 was the delegate of

Dhaahara Khandagram SKUS Limited, petitioner no. 5 was

the delegate of Bar Bahichberia SKUS Limited, petitioner

no. 6 was the delegate of Tamluk Ghatal Central

Cooperative Bank from Ratulia SKUS Limited and the

petitioner nos. 7 to 10 are the members of diverse

Cooperative Societies Limited.

The petitioners in the matter of Kamales Chakrabarti

& Ors. are members of respective Co-operative Societies

and the petitioner nos. 1, 6 and 7 are the delegates of their

Societies.

The tenure of the Board of Directors of Tamluk

Ghatal Central Cooperative Bank Limited expired on 9th

June, 2023 and presently the highest designated employee

of the Society is managing the day to day affairs of the said

Society.

According to the provision of the West Bengal

Cooperative Societies Act, 2006 (hereinafter referred to as

the 'said Act') it is the duty of the Board of Directors of the

Cooperative Society to manage its affairs. The Directors are

to be elected within five years from the date of last election.

The election of Tamluk Ghatal Central Cooperative

Bank Limited is a two tier election. The delegates of the

Primary Cooperative Societies vote in the general meeting

for election of Directors of the Central Cooperative Society.

Each delegate holds office till fresh delegates are elected in

their place provided fresh delegates shall be elected before

each annual general meeting in which election of Directors

is to be held under sub-Section 1 of Section 29.

As the election of the Central Bank was not held

within the validity of the earlier Board, the Directors of the

Board of the Cooperative Society, in terms of Section 36 of

the said Act, are deemed to have vacated their offices. The

State Government, as such, was liable to appoint special

officers from amongst the officers of the State Government

for managing the affairs of the Cooperative Society for a

period not exceeding one year from the date of expiry of the

period.

The special officer appointed to manage the affairs of

the Cooperative Society has a duty to conduct election and

hand over the management to the newly elected Board.

As the tenure of the Primary Cooperative Societies

expired long back, the State Government, by diverse

notifications, appointed special officers in the Primary

Cooperative Societies. All the special officers appointed are

the employees of the Central Society, that is, the Tamluk

Ghatal Central Cooperative Bank Limited. The petitioners

allege that only those persons who owe allegiance to the

ex-Chairman of the dissolved Board of Directors of the

Central Society, have been appointed as special officers.

There are 1025 members of the Central Cooperative,

out of which according to the records of the Registrar,

Cooperative Societies, 477 are not-working. Out of the

balance 548 functional Societies, 265 are run by the

elected Board of Directors, 76 are run by the highest

designated employee and 207 by the special officers. The

highest designated employees are not entitled to sent

delegates; which implies that out of the 548 functional

societies 76 primary societies cannot sent their delegates

for voting for election of the Directors. Out of the left out

472 primary Societies, 466 delegates have been sent for

election of the Central Cooperative Society.

After the appointment of the special officers from the

month of March, 2023 onwards till August, 2023, steps

have been taken for preparation and publication of the

draft voters' list and election has been fixed on 15th

October, 2023.

The petitioners contend that it was highly improper

for the State Government to appoint employees of the

Central Bank to act as special officers. The same is

contrary to the provision of Section 36 of the said Act

which specifically mandates officers of the State

Government to be appointed as special officers.

It has been submitted that the notification by which

the special officers were appointed ought to have been

published in the official gazette. In the instant case there is

no such notification published in the official gazette

relating to appointment of special officers. Till the

notification is published in the official gazette, the

appointment of special officers cannot be treated as a valid

one and the special officers do not have any

right/authority to conduct the election.

It has been submitted that the State Government is

committing a fraud on the statute by not acting in terms of

the prescribed mandate of law.

The Cooperative Societies which do not have a valid

Board of Directors and where special officers are yet to be

appointed, will be automatically barred from participating

in the election of the Central Cooperative Society.

Accordingly, the entire election will turn out to be a farce.

The State Government ought not to exempt any

Cooperative Society from the operation of the provision of

the said Act and exemption cannot be accorded for

extension of the tenure of the Board of Directors.

The special officers are not authorized to name the

delegates. At least twelve bank employees appointed as

special officers have proceedings initiated against them

challenging their appointment.

Prayer has been made to restrain the Central

Cooperative Society to constitute its Board of Directors till

the election is conducted in the Primary Cooperative

Societies.

In support of the aforesaid statements and prayers

the petitioners rely upon the decision passed by the

Hon'ble Supreme Court in the matter of Bharati Reddy

vs. State of Karnataka & Ors. reported in (2018) 12

SCC 61 paragraphs 6, 11, 13 and 15.

The submission of the petitioners is opposed by the

respondents. An application for addition of party at the

instance of the candidates who contested the election for

the Central Cooperative Bank and who claim themselves to

be elected uncontested has been filed in the matter of

Subrata Roy and Ors.

The respondents and the applicants unanimously

submits that the schedule of election was published in the

month of August, 2023 and draft voters' list was published

on 4th September, 2023. Objections were invited and date

of hearing was fixed after hearing the objections, the final

voters' list was also published. The affiliated Societies sent

the names of the delegates and the election of the Board of

Directors is scheduled on 15th October, 2023.

It has been submitted that the petitioners intend to

thwart the entire election process at the very last stage.

Had the petitioners been aggrieved by the act of the

respondent authorities, steps ought to have been taken

immediately after the notification was published appointing

special officers.

It has been contended that the petitioners ought to

have approached the appellate forum and exhausted the

statutory remedy available to them instead of rushing to

the writ Court at the last moment. It has been contended

that the petitioners' approach in the writ petition cannot be

taken to be a bona fide one, not acting in the interest of the

Society.

The locus standi of the petitioners has also been

questioned. It has been submitted that out of lakhs of

members of the central Cooperative Society only ten in the

matter of Subrata Roy & Ors. and only nine in the matter

of Kamalesh Chakraborty & Ors. have approached the

Court. The petitioners cannot be treated as representatives

of the rest members. The present writ petition, not being a

public interest litigation, cannot be entertained as the

petitioners cannot be treated as 'aggrieved party'. The

applicants rely on the decision delivered by the Hon'ble

Supreme Court in the matter of Election Commission of

India vs. Ashok Kumar & Ors. reported in (2000) 8 SCC

216 where the issue arising for decision was the

jurisdiction of the High Court to entertain petitions

under Article 226 of the Constitution of India and to

issue interim directions after commencement of the

electoral process, and Shaji K. Joseph vs. V. Viswanath

& Ors. reported in (2016) 4 SCC 429 wherein the Court

held that the High Court was not right in interfering with

the process of election especially when the process of

election had started upon publication of the election

program and more particularly when an alternative

statutory remedy was available.

It has been contended that assuming that the

notification for appointment of the special officers have not

been published in the official gazette, the same may be

considered as a mere irregularity and can always be

regularized. Non-publication of the notification in the

official gazette will not be fatal and ought not to stand in

the way of holding the elections. All the members of the

Central and the Primary Cooperative Societies are aware of

the appointment of the special officers and, as such, all

members have knowledge of their appointment. As none

approached the statutory appellate forum challenging the

appointment of special officers, it has to be deduced that

none, but for the petitioners, have any objection to their

appointment.

It has been submitted that if the election of the

Central Cooperative Society is not conducted within the

prescribed time period, then the entire functioning of the

Central Cooperative Society may come to a standstill

causing prejudice to lakhs of members.

Learned counsel representing the respondent no. 9

being the Central Cooperative Bank relies upon the

unreported judgment delivered by a co-ordinate Bench of

this Court on 26th April, 2022 in WPA 5924 of 2022 in the

matter of Ramkrishna Das vs. State of West Bengal &

Ors. wherein the Court permitted the election Commission

to conclude the election process.

The respondent also relies upon an unreported order

dated 15th September, 2023 passed by this Bench in WPA

21170 of 2023 in the matter of Sk. Farid Ali vs. The

State of West Bengal & Ors. wherein the Court directed

the Commission to take prompt necessary steps for holding

the election in accordance with law.

Respondents pray for dismissal of the writ petitions.

I have heard and considered the rival submissions

made on behalf of all the parties.

It appears that all the issues raised in the present

writ petition cannot be decided without exchange of

affidavits and without a full-fledged hearing.

For the purpose of granting interim order in the

matter the balance of convenience and inconvenience of

the respective parties have to be taken into consideration.

Admittedly, in the instant case publication of

notification for appointment of special officers commenced

on and from July, 2023. Assuming that the notifications

were not published in the official gazette, but it appears

that the members were more or less aware of their

appointment.

It is true that, ideally, the election of the Primary

Cooperative Societies ought to have been held prior to the

election of the Central Cooperative Society so that the

delegates of the Primary Cooperative Societies can cast

votes in the election of the Central Cooperative Society.

In the instant case as the tenure of the Primary

Cooperative Societies expired long back, accordingly, the

Directors of the Primary Cooperative Societies lose their

opportunity to cast vote for the election of the Directors of

the Central Society. The State Government, conveniently,

appoints special officers from amongst the employees of

the Central Society so that the said special officers can act

as per the dictates of the Government. The aforesaid action

has shown results as the election to the Central Society

has more or less remained uncontested. The purpose of the

Government to keep control over the Central Bank appears

to have been taken care of.

Despite the above, the question is whether to

exercise jurisdiction and interfere in the election process at

such a late stage. It appears from records that the election

programme was declared in early September. The

petitioners have waited till the end of September to

approach this Court and by the time the writ petitions

could be taken up for consideration, the process of election

is nearly over. The election is scheduled on 15th October,

2023.

In line with the decisions referred to above and

keeping in mind that the functioning of the Central Society

may be at stake if the election is interfered with at this

stage, accordingly, the Court refrains from interfering with

the election for the time being. However, it is made clear

that the result of the election of the Central Cooperative

Society will be subject to the final order passed in the

instant writ petition.

It goes without saying that the elections of the

Primary Cooperative Societies ought to be held at the

earliest and concluded latest by six months, come what

may. The said elections are due for a considerable period of

time.

The Election Commission is, accordingly, directed to

take prompt necessary step for conducting and concluding

the election of the Primary Cooperative Societies at the

earliest but positively within six months from date.

The respondents and the applicants are directed to

file affidavit in opposition within a period of eight weeks,

reply, if any, may be filed within a fortnight thereafter.

Liberty to mention for hearing.

The applicants being the contesting members of the

election may have a say in the writ petition and may be

prejudiced if any order is passed in the writ petition,

behind their back. Accordingly, the application for addition

of party stands allowed. The applicants be added as private

respondents in the writ petition.

CAN 1 of 2023 in WPA 23439 of 2023 stands

disposed of.

Urgent certified photocopy of this order, if applied

for, be supplied to the parties or their advocates on record

expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)