Judgment In this application under Article 226 of the Constitution of India the petitioner Kunti Co-operative Cold Storage Society Ltd. has challenged the Order No. 18 dated 19th July 1978 passed by Sri P.K.A. Chowdhury, Member, West Bengal Co-operative Tribunal in Appeal No.3 of 1978. 2. To appreciate the controversy involved in this application it is necessary to refer briefly to the relevant facts. 3. The respondent No.5 Bon Behari Ghosh was appointed as the Cashier of the petitioner society by an order dated 28th February, 1968 with effect from 1st March, 1968. The service of the Respondent No.5 was terminated by Byomkesh Majumdar, Chairman of the petitioner society. The notice of termination was received by the respondent No.5 on 29th December, 1969. It appears that the termination of the respondent No. 5 was approved by the Chairman in a meeting of the Managing Committee of the Society on 18th January, 1970. The respondent No.5 disputed his termination of service and in consequence thereof a dispute was referred under section 86 of the West Bengal Co-operative Societies Act to the Registrar of Co-operative Societies, Hooghly. On 6th May, 1970 the Assistant Registrar of Co-operative Societies, Hooghly informed the respondent No.5 that as the action taken by the petitioner was a disciplinary action the prayer of the respondent No.5 could not be entertained as a dispute under Section 86 of the Co-operative Societies Act (hereinafter refund to as "the said Act"). On or about 5th June 1970 the respondent No.5 moved this Court under Article 226 of the Constitution challenging the said order and obtained a Rule being C.R. No. 3673 (W) of 1970. The said Rule was heard by Debi Prasad Pal, J. (as he then was) and by order dated 22nd November, 1973 the Assistant Registrar of the Co-operative Societies, Hooghly (hereinafter referred to as the Assistant Registrar) was directed to decide on the facts and materials before him as to whether the termination of service of the petitioner of that application (respondent No.5 herein) related to a dispute concerning disciplinary action and also on that basis to further decide whether he was competent to deal with the matter referred to him under section 86 of the said Act. On 7th June, 1974 an Award was made by the Assistant Registrar declaring that the letter dated 26th December, 1969 terminating the service of the respondent No.5 was void and inoperative in the eye of law. The petitioner society challenged the said award dated 7th June 1974 in a writ Application being C.R. No. 5543 (W) of 1974. The said Rule 5543(W) of 1974) was disposed of by T.K. Basu, J. on 19th August, 1977. By the said order His Lordship allowed the petitioner society to prefer an appeal from the said award dated 7th June 1974 within 45 days from the date of the said order i.e., 19th August, 1977. Thereafter, by another order His Lordship extended the said time by one more day. Pursuant to the said order, it appears, the petitioner preferred an appeal against the said award dated 7th June, 1974 before the West Bengal Co-operative Tribunal (hereinafter referred to as "the Tribunal".) The said appeal was numbered an Appeal No. 3 of 1978. 4. While the proceeding relating to the termination of service of the respondent No.5 as stated above was pending, some other proceedings were taken by the petitioner concerning the constitution of its managing committee to which a brief reference may be made at this stage. 5. The annual general election of the petitioner society was held on 15th June 1973 and the Election Officer appointed by the Assistant Registrar duly declared the remit thereof on the said date. Pursuant to the said election managing committee of the petitioner was formed on 11th July, 1973 and the said newly elected managing committee took charge of the society until the time mentioned hereinafter. One Nemai Chandra Das was elected as a director of the Managing Committee in the said annual general election. 6. One Sushil Kumar Modak, a member of the said Society raised dispute challenging the validity of the said election held on the 15th July, 1973 on various allegations before the Registrar, under Section 86 of the said Act and the said dispute was registered, as Dispute Case No. 197 of 1972-73. By his award dated the 27th August, 1973, the Assistant Registrar of the Co-operative Societies Hooghly held the said election dated the 15th June, 1973 to be unlawfull. By his award dated the 27th August, 1973, the Assistant Registrar of the Co-operative Societies Hooghly held the said election dated the 15th June, 1973 to be unlawfull. Being aggrieved by the said award dated the 27 August 1973 passed in the said Dispute Case No. 197 of 1972, the members of the Managing Committee of the said society on or about the 19th September, 1979 moved an application under Article 226 of the Constitution of India in this Court and obtained a Rule. Said matter was numbered C.R. No. 3251 (W) of 1973. On the said date an ad-interim stay of the operation of the said impugned award pending the disposal of the said rule was granted. On the 22nd May 1977, Deb, J. discharged the said rule (C.R. No. 3251 (w) of 1973) and vacated the interim order. His Lordship directed the petitioners in the said rule to pursue their remedy under the appropriate law. In appears that no further proceedings ware taken challenging the validity and/or legality of the said award dated the 22nd August 1973. 7. The Tribunal dismissed the said appeal No.3 of 1978 on the ground that it was in-competent because one Nemai Das who signed the memorandum of appeal as a Director of the society had no authority to sign the same on the relevant date. On the question of maintainability of the appeal, the Tribunal observed as follows: "But it is respectfully submitted that the expression Acts of the officers de-facto performed by them within the scope of their assumed official authority" as referred to in 15 CLJ 517 to 574, implies bonafide acts of those officers. There in no dispute on the point that Civil Rule No. 3251(w) dated 21.9.1973 which issued an adinterim injunction restraining the operation of the Award dated 17.8.1973 in Dispute Case No. 197 of 1972-73 was discharged by the Hon'ble Court on 22.5.1977 i.e., long after the discharge of the aforesaid Civil Rule No. 3251 (W) dated 21.9.1973. Consequently, on the date or the filing of the present appeal i.e. 4.10.1977, all the members of the Managing Committee of the Society knew very well that they were no longer such members of the Managing Committee of the Society. Consequently, on the date or the filing of the present appeal i.e. 4.10.1977, all the members of the Managing Committee of the Society knew very well that they were no longer such members of the Managing Committee of the Society. Therefore, the filing of the Memo of Appeal in the name of the Society by Sri Nemai Das, who is alleged to be one of the Directors of the Managing Committee of the Society, cannot be regarded as bonafide. The appellant, therefore, cannot claim any proceeding under the aforesaid decision, of the Hon'ble Calcutta High Court reported in 15 CLJ (574) or of the Hon'ble A.P. High Court in AIR 1976 A.P. 193 . That apart, id has been rightly pointed out by Sri Chakraborty, the learned Advocate for the Respondent no. 1, that under Sub-Rule 2 of Rule 48 of the West Bengal Co-operative Societies Rules, 1974 notwithstanding anything contained in Rule 43, Rule 47 or Sub-Rule (1) of Rule 48 where, by reasons of an order of a Court or for any other reasons, the Managing Committee of a Co-operative Society is unable to exercise the powers conferred by these Rules, or its Bye-laws, the Executive Officer shall, during the period of such inability, exercise such powers of the Managing Committee. On this view also Sri Nemai Das had no legal authority to sign the present Memo of Appeal or to file such Appeal in the name of the Society. Again, it is both admitted and apparent that on the date of the filing an appeal, i.e. 4.10.1977 Sri Nemai Das, who, like other Directors of the Society, was admittedly, elected in the Annual General Meeting held on 15.6.1973, was a member of the Managing Committee for more than consecutive three year, and, therefore, under the mandatory provisions of subsection (2) of Section 23 of the West Bengal Co-operative Societies Act, 1973, Sri Nemai Das had no legal authority to function as a Director of the Society. In this connection I may also point out that under Clause (d) of Rule 35 of the West Bengal Co-operative Societies Rules, 1974, a Director shall cease to hold office if he becomes subject to disqualification which debars him from seeking selection as a Director. From the above findings it is clear that one has no hesitation to conclude that the Appeal is not maintainable." 8. From the above findings it is clear that one has no hesitation to conclude that the Appeal is not maintainable." 8. The main controversy in the instant case is whether the Memorandum of Appeal in Appeal No. 3 of 1978 was validly signed or not. 9. Mr. Goutam Chakraborty, learned Counsel appearing on behalf of the petitioner has submitted that the action of the Managing Committee in signing the Memorandum of Appeal though Nemai Das can be supported on the principle of de-facto doctrine inspite of the fact that the Managing Committee was declared to be illegal. He has further submitted that the State Government had deputed an officer i.e. Executive Officer of the Society under Section 24 of the said Act right from the beginning but during the subsistence of the Managing Committee the Executive Officer was to set under the Supervision of the Managing Committee while discharging his duties exercising his powers under Rule 47(2) of the West Bengal Co-operative Societies Rules, 1974 (hereinafter referred to as the said Rules). It is submitted that by an order being Order No. 172 dated 10th January 1978 the Assistant Registrar of Co-operative Societies declared that the Executive Officer of the said Society would immediate effect exercise the powers of the Managing Committee in accordance with provisions of Rule 42(2) of the said Rules and he would continue to exercise such powers till reconstitution of the Managing Committee in a general meeting to be convened under Section 21(4) of the said Act. It is therefore submitted by Mr. Chakraborty that on and from the said date viz. 10th January 1979 the Executive Officer had the power as the authority to institute legal proceeding for and on behalf of the Societies but before the said date the Executive Officer could only exercise the powers of instituting legal proceedings under supervision of the Managing Committee. Therefore, according to the Counsel the Managing Committee, was the proper authority to take legal proceedings before the date of the said order. It is also the submission of the Counsel that the said act of Nemai Chandra Das can be supported on the basis of the de-facto doctrine. It is also submitted that the validity of the Constitution of the Committee could not be challenged collaterally in the said Appeal, in view of the law as laid down by the decided cases. It is also the submission of the Counsel that the said act of Nemai Chandra Das can be supported on the basis of the de-facto doctrine. It is also submitted that the validity of the Constitution of the Committee could not be challenged collaterally in the said Appeal, in view of the law as laid down by the decided cases. It support of his submissions Mr. Chakraborty placed reliance on the case of Immediseeti Ramkrishnaiah Sons v. State of Andhra Pradesh, reported in A.I.R. 1976 A.P. 193 and Pulin Behari v. King Emperor, reported in (1912) 15 C.L.J. 517. 10. Mr. Anupam Chatterjee, learned Counsel appearing on behalf of the Respondent no. 5 referring to the various sections of the said Act and the said Rules has submitted that when an officer is deputed by the State Government i.e. Executive Officer of a Society, then under Rule 47(2)(11) such Executive Officer is entitled to institute, defend and conduct legal proceeding in Law Court and other places and enter into compromise or arbitration with creditors and debtors of the Society. He has further submitted that the exercise of such power of course is subject to the general control of the Managing Committee. But in the instant case on the date on which an Appeal was preferred the constitution if the Managing Committee was held to be invalid by the Award dated 27th August 1973 and the Rule challenging the said Award was discharged on 22nd May 1977. Therefore, according to Mr. Chatterjee on the said date i.e. 22nd May 1977 the Executive Officer alone was entitled to institute, defend and conduct legal proceeding on behalf of the Societies. Referring to Rule 48 Sub Rule (2) he has submitted that in any event in view of the order made in C.R. No. 3251 (W) of 1973 on 22nd May 1977 only the Executive Officer on and from the said date was entitled to exercise all the powers of the Managing Committee and the power of the Managing Committee conferred by Rule 43(g) of the said Rules includes the power to institute, defend or compromise legal proceedings. Learned Counsel has further submitted that in the instant case the action of Nemai Das cannot be supported on the basis of the de-facto doctrine because at the time when such power was exercised the Committee for and on whose behalf Nemai Das purported to act, was declared to be illegal and, therefore, the de-facto doctrine as laid down in the case relied upon by the petitioner is of no assistance to him in this case. According to Mr. Chatterjee the decisions reported in AIR 1976 AP 193 and 15 CLJ 517, are distinguishable. 11. Mr. Chatterjee has also referred to item 1 of the Third Schedule to the Act and submitted that any member of the Society, if aggrieved by any order of the Registrar, can prefer an Appeal. In the instant case, there was no impediment to the filing of any appeal against the impugned award by any member in his own name. But in the instant case, Nrmai Chandra Das has not filed the appeal in his own name but he did so acting as a member of the Managing Committee of the Society and for and on behalf of the Society and in view of the matter the finding of the appeal is defective. 12. Before dealing with the respective submission made on behalf of the parties a brief reference to the relevant provisions of the Act and the Rules may be made. 13. Section 19 of the Co-operative Societies Act, 1973 provides, inter alia, that upon registration the Society becomes a body corporate and it is entitled to institute, defend suit and other legal proceedings. 14. Section 23 inter alia provides that the management of every Co-operative Society shall vest in a Managing Committee constituted in accordance with the rules and bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed, respectively, by the Act, the rules and the bye-laws. 15. 14. Section 23 inter alia provides that the management of every Co-operative Society shall vest in a Managing Committee constituted in accordance with the rules and bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed, respectively, by the Act, the rules and the bye-laws. 15. Section 24, inter alia, provides that the State Government may, on the application of a co-operative Society supported by a resolution of the Managing Committee or the general body of member of the society or on the recommendation of the Registrar and on such conditions as may be prescribed, dispute a Government Officer to the service of the Society of the purpose of managing its affairs, and the officer of the Government so disputed shall exercise such powers and perform such duties as may be prescribed. 16. Rule 28 provides for the constitution of managing Committee of a Society. Rule 43 provides for the powers of the Managing Committee and clause (g) of the said Rule empowers the Managing Committee to institute, defend or compromise legal proceedings. 17. Rule 47 provides as follows : "Government Officer on deputation to be called Executive Officer (1) A Government officer, who is deputed to the service of a Co-operative Society under Section 24, shall be called the Executive Officer of the Society. (2) Subject to any condition to the contrary that the State Government may in any particular case think fit to impose, the Executive Officer shall be, in the conduct of the business of society exercise the following powers, namely:- (i) Have control over the salaried officers and employees of the Society with power to sanction leave and to impose any punishment upon, or to suspend, any member thereof in terms of clause (h) of Sub-rule (2) of rule 51 and clause (i) and sub-rule (2) and rule 51 respectively; (ii) Institute, defend and conduct legal proceedings in law Courts and other places and enter into compromise or arbitration with creditors and debtors of the society". Rule 48(2) of the said Rule provides as follows: Notwithstanding anything contained in rule 43, Rule 47 or sub-rule (1) of rule 48, where by reason of an order of a Court or for any other reason the Managing Committee of a Co-operative Society is unable to exercise the powers conferred by these rules, or its bye-laws the Executive Officer shall during the period of such inability exercise such powers of the Managing Committee. 18. Rule 49 provides that in the event of any difference of opinion between the Executive Officer and the Managing Committee of the Society with regard to any matter concerning the affairs of the society not expressly covered by the Act, the Rules and the bye-laws the Executive Officer may refer the matter to the Registrar for his decision, find the decision of the Registrar shall be final. 19. It appears that there is considerable force in the argument of Mr. Chatterjee learned counsel for respondent no. 5. When under section 24 an officer is deputed by the Government, who according to Rule 47 is called as the Executive Officer, such officer is conferred with various powers and duties under the Act and the Rules. According to Rule 47(2), the relevant provisions of which I have already extracted earlier, the Executive Officer is entitled to exercise the power of instituting defending and conducting legal proceedings for and on behalf pf the society. But the Executive Officer shall be under the learned control of the Society. Therefore, although the Executive Officer is under the general control of the Managing Committee yet the above power is to be exercised by the Executive Officer. In the matter of exercise of the power the Managing Committee can control the Executive Officer but such power cannot be said that by the Managing Committee itself, therefore, it cannot be said that when an Executive Officer is deputed the Managing Committee, can exercise the power without the Executive Officer. In the matter of exercise of the power the Managing Committee can control the Executive Officer but such power cannot be said that by the Managing Committee itself, therefore, it cannot be said that when an Executive Officer is deputed the Managing Committee, can exercise the power without the Executive Officer. However, in the instant case the question of control, of the Managing Committee does not arise because admittedly on 22nd May, 1977 upon dismissal of the writ application being C.R. No. 3251 (W) of 1973 the award dated 27th August, 1976 become operative and therefore on the relevant date there was no validly constituted Managing Committee and in that view of the matter the members were not entitled to act on behalf of the Committee. 20. Further, it appears that in the instant case most relevant rule is Rule 48(2). On the date on which the appeal was filed by the Managing Committee through Nemai Chandra Das it was not competent to exercise the power conferred upon it under Rule 43(g) because before that date the constitution of the Managing Committee was declared by the competent authority to be unconstitutional and invalid. 21. Therefore, on the relevant date only the Executive Officer was entitled to and could institute, defend or conduct legal proceedings for and on behalf of the Society. It is not disputed that this Society has an Executive Officer althrough. The order dated 10th January, 1978 of the Assistant Registrar, in my opinion, is of no assistance in this case become the power to institute, defend and conduct the legal proceeding for and on behalf of the society of the Executive Officer flows from the provisions of the Act and the Rule and no provision either in the Act or the Rule has been brought to my notice empowering the Assistant Registrar to confer such power upon the Executive Officer. 22. Two decisions relied upon on behalf of the petitioners, in my view, are distinguishable. 23. Facts of the case of (1) Immedisetti Remkrishanaiah Sons Anakapalli & Ors. v. State of Andhra Pradesh & Anr., AIR 1976 Andhra Pradesh 193 were that in a writ petition, the petitioner challenged the levy of fees by the Anakipalli Marketing Committee. One of the grounds of challenge was that the notification declaring the notified market area was invalid as the condition precedent to the declaration was not fulfilled. v. State of Andhra Pradesh & Anr., AIR 1976 Andhra Pradesh 193 were that in a writ petition, the petitioner challenged the levy of fees by the Anakipalli Marketing Committee. One of the grounds of challenge was that the notification declaring the notified market area was invalid as the condition precedent to the declaration was not fulfilled. It appears that one of the notifications issued by the Marketing Committee declared the limits of the Annakalli market under Sec. 4(3)(c) of the Act. The notifications was published in Andhra Pradesh Gazette dated 5th March, 1970 and by the notification the entire area within the limits of Annakalli market. In appears that the Government of Andhra Pradesh purporting to Act under Sec. 5(1)(i) of the Agricultural Produce and Liveatock Markets Act by G.O.Rt. No. 899 dated 11.7.69 nominated 9 persons to represent the growers of the agricultural produce and owners of livestock on the Agricultural Market Committee of Anakapalli. The nomination of there nine persons was set aside in writ petition No. 1256 of 1970 on the ground that there was no consultation with the director of Marketing as contemplated by section 5(1)(i) of the Act. The judgment of the High Court was pronounced on 27.7.71. The submission of the petitioners counsel in that case was that the declaration of the market area by the market committee as published in Andhra Pradesh gazette on 5th March, 1970 was no declaration in law as there was no legally constituted market committee in existence at that time. The Court observed as follows:- "It is true, in W.P. No. 1255 of 1970 (Andhra Pradesh) it was held that the appointment of him, members of the market committee by the Government was held to be illegal as there was no consultation with the Director of Marketing as prescribed by Section 5 of the Act. But the declaration under Section 4(3)(c) was made before the appointment of the members of the Committee was declared invalid by the Court. On the date when the declaration under Section 4(3)(c) was made the High Court had not yet declared the appointment of the members of the Committee to be invalid and the Committee was undoubtedly functioning, as if it was a legally constituted committee. It was doing as under colour of the appointment made by the Government in proper exercise of the Government power under section 5 of the Act. It was doing as under colour of the appointment made by the Government in proper exercise of the Government power under section 5 of the Act. There was thus in existence, on the date of declaration under Section 4(3)(c) the de-facto market committee". 24. The question that fell for consideration in the above case was whether the acts of the de-facto market committee could be upheld as valid in law. Relying on the various decisions, as will appears from the Judgment, including the decision of this Court in the case of (2) Pulin Behari v. King Emperor, (1912) 15 CLJ 517, the Andhra Pradesh High Court was of the view that the declaration of the market area published by the Andhra Pradesh Government in the gazette on 5th March, 1970 was valid despite the fact that the market committee was constituted illegally. 25. In my opinion learned Counsel for respondent no. 5 has rightly pointed out that the Andhra Pradesh decision is distinguishable because in that case the action of the market committee was taking before such committee was declared by competent Court to be invalid. In the instant case, as will appear from the fact as asked hereinbefore that upon discharge of rule in CR No. 3251(W) of 1973 the award of the Arbitrator under Sec. 87 of the Act become operative and according to the award on the relevant date there was no validly constituted Managing Committee. Therefore the impugned Act of Nemai Das on behalf of the Managing Committee cannot, in my view, be supported on the basis of the de-facto doctrine. For all the reasons aforesaid this application, in my view, should fail. This application is, therefore, dismissed Rule Nisi is discharged. Interim order, if any, is vacated. There will, however, be no order as to costs.