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2000 DIGILAW 631 (CAL)

Asurali Paik v. State of West Bengal

2000-12-13

Dilip Kumar Seth

body2000
JUDGMENT Dilip Kumar Seth, J. By an order dated 10.5.2000 contained in Annexure 'P2' considering the interest of the members of the Asurali Paikpari S.K.U.S. Kolaghat, District Midnapore, the Board of Administrator was dissolved on the ground that the Board did not arrange election of the Board of Directors. The said notification was issued in exercise of the power conferred upon the authority by sub-section (2) of section 30 of the West Bengal Co-operative Societies Act, 1983. The learned advocate for the petitioners has taken a ground that the General Meeting was held on 10.10.95 and the Board is due to expire on 1st October, 2001. A meeting was held to elect a delegate for the annual general meeting of the apex body. The order was purported to have been issued as a notification. But there is nothing to show that the said order was ever notified or any notification was ever issued, though it relates to the exercise of the power conferred by sub-section (2) of section 30 of the W.B.C.S. Act, 1983. In the absence of notifications under sub-section (2) of section 30 of the W.B.C.S. Act, 1983, this notification issued by the Deputy Secretary, is void ab initio. Inasmuch as when the statute provides for the exercise of a power conferred in a particular manner in law, such power is to be exercised only according to the manner provided and not otherwise. Therefore, the notification should be quashed. 2. Mr. Haque, learned advocate for the State prayed for time to produce the notification alleged to have been published in the Official Gazette. But despite such opportunity, he has not been able to find out as to whether any notification was at all issued. He has not made any statement that no notification was issued within the meaning of sub-section (2) of section 30 of the said Act. At the same time he was also not stated that any such notification has been issued. He has simply stated that he has not been able to find out the notification. He had referred to three other writ petitions involving similar question and pointed out that the alleged notification was issued, but he has not been able to find out the same. 3. The Counsel for the petitioner herein also has pointed out that the question involved in all the four matters are identical and capable of being decided together. He had referred to three other writ petitions involving similar question and pointed out that the alleged notification was issued, but he has not been able to find out the same. 3. The Counsel for the petitioner herein also has pointed out that the question involved in all the four matters are identical and capable of being decided together. He also pointed out that no notification within the meaning of subsection (2) of section 30 of the Act, in arty of these cases was ever issued in exercise of the power under sub-section (2) of section 30 of the said Act. 4. Mr. Haque alternatively contended that having regard to the facts and circumstances the order is quashed, in that event some time may be given to the respondents to issue a fresh notification under sub-section (2) of section 30 of the said Act. 5. It appears that identical questions are involved in all these four matters. Therefore all the four matters be taken up together. The Counsel for the respective parties have made their respective submission in respect of each of the said matters and had adopted that of Mr. Bhattacharyya as noted above. 6. I have heard the learned Counsel for the respective parties at length. 7. It is contended on behalf of the petitioners that in each case order was issued uniformly, but without any notification having been published in the Official Gazette and as such it was not in conformity of sub-section (2) of section 30 of the said Act. No notification however is shown to have been issued. The learned advocate for the respondents were unable to make a specific statement with regard thereto. The facts remain that the respondents have not been able to produce any copy of any such notification. 8. Section 30 in sub-section (1) of the 1983 Act provides for dissolution of Board and appointment of administrator on certain grounds as prescribed in clauses (a) and (b) thereof. However, before such dissolution a notice is to be served upon the Board to show-cause why an order under sub-section (1) shall not be passed by the Registrar. The power under sub-section (1) is conferred upon the Registrar. Only after giving opportunity of hearing, the Registrar may dissolve the Board. But such order must state the reasons for which the Board was dissolved. The power under sub-section (1) is conferred upon the Registrar. Only after giving opportunity of hearing, the Registrar may dissolve the Board. But such order must state the reasons for which the Board was dissolved. The Registrar may also appoint one or more administrator to manage the affairs of the society upon such dissolution. Thus, sub-section (1) prescribes that dissolution can be effected by the Registrar only after giving notice and an opportunity of being heard to the Board and such order has to be in writing stating reason. 9. Sub-section (2) however, makes a provision for immediate dissolution. But this power is conferred on the State Government. The state Government may exercise the power under sub-section (2) either on the report of the Registrar or of its own motion. But in both cases the State Government has to form an opinion that one or more of the circumstances provided in sub-section (1) exists and that immediate dissolution is essential in the interest of the Co-operative Society or the Co-operative movement in general. If these circumstances are satisfied then such dissolution can be effected without giving any notice to the Board. This power can only be exercised by a notification giving reasons for the dissolutions of the Board in the notification. It may also appoint one or more administrator to manage the affairs of the society. 10. Thus, there is a marked difference in sub-section (1) and sub-section (2).sub-section (1) postulates exercise of power of dissolution by the Registrar after giving notice and opportunity of being heard to the Board, whereas immediate dissolution can be made by the State Government through a notification without giving notice and opportunity of being heard in the contingencies provided in sub-section (2). 11. In the present case there has been an immediate dissolution. 11. In the present case there has been an immediate dissolution. Therefore in order to examine the test laid down in sub-section(2) it may be necessary for us to refer to sub-section (2) which runs as follows: "(2) If, no receipt pf a report from the Registrar, or of its own motion, the State Government is of opinion that in view of one or more circumstances referred to in sub-section (1) , immediate dissolution of the Board of any Co-Operative Society is essential in the interest of that Co-operative movement in general, the State Government may, without giving such board any notice, by notification, giving reasons therefor, dissolve such board, the directors of which shall forthwith vacate their offices and the State Government shall appoint one of more administrators to manage the affairs of that Co-operative Society for such period, not exceeding two years at a time, as may be specified in the notification and may also by notification extend the period so, however, that the total period shall not exceed three years." 12. Therefore in order to exercise the power under sub-section (2) each of the following conditions are to be satisfied namely :- i) this power can be exercised by the State Government; ii) through a notification; iii) if one or more or the circumstances referred to in sub-section (1) clauses (a) and (b) exists: iv) and that the interest of the Co-operative Society or the co-operative movement in general makes it essential on the basis of the existence of the condition referred to in clause (iii) hereinabove; v) that the State Government has formed an opinion to that effect; and vi) such notification must contain the reasons for the dissolution. 13. The expression "notification" used in sub-section (2) in section 30 has to be interpreted according to the meaning ascribed to the word "notification" in section 2 sub-section (30) of the 1983 Act. The word "notification" has been defined in section 2(30) of the said Act to mean a notification published in the Official Gazette. Thus, the notification must be published in the Official Gazette and only upon such publication of the notification the order can take effect. But then the notification must contain reasons. 14. The word "notification" has been defined in section 2(30) of the said Act to mean a notification published in the Official Gazette. Thus, the notification must be published in the Official Gazette and only upon such publication of the notification the order can take effect. But then the notification must contain reasons. 14. As observed earlier, in the present case, the Counsel for the respondents has not been able to show that the alleged notification, by which the Board was sought to be dissolved, was ever published in the Official Gazette. In the absence of any material to show that the notification impugned was published in the Official Gazette, it cannot be said that the conditions provided in sub-section (2) has been conformed. 15. Then again the alleged notification impugned does not contained any reasons as is required under sub-section (2). The reason that has been sought to be mentioned in the alleged notification are that for the interest of the members of the Co-operative Society and for the interest of Co-operative movement in general the Board was purported to be dissolved. It has only quoted the expression used in sub-section (2). In fact, the reason must be intelligible to the Board for which it is being dissolved. The quotation of the expression used in the section cannot be said to be an intelligible reason. The reason for dissolution must specify the fact as to on which ground the opinion has since been formulated or on which ground or reason the opinion has since been formulated by the State Government that in the interest of the Society and the interest of the Co-operative movement in general the dissolution was necessiated. The rea.8ons for forming such opinion are required to be given in the notification. Mere quoting of the expression used in the section would render the object of giving reasons frustated and would make it an empty formality. The Board is democratically constituted. The democratic process can be interfered with only if there are sufficient reasons. The State Government has been empowered to do so only upon formation of such opinion. The reason for which such opinion is formed is to be given and spelt out in the notification itself. 16. The power under sub-section (2) has been conferred on the executives. The democratic process can be interfered with only if there are sufficient reasons. The State Government has been empowered to do so only upon formation of such opinion. The reason for which such opinion is formed is to be given and spelt out in the notification itself. 16. The power under sub-section (2) has been conferred on the executives. In order to restrict the power and canalise the same certain conditions have been laid down in sub-section (2) so as to prevent misuse or abuse of such emergency power. These are controls provided by the statute in the exercise of the power by the executives. Since the statute has provided a particular manner while conferring an emergency jurisdiction on the executives, such powers can be exercise by the executives only in that particular manner as provided in sub-section (2) and not otherwise. 17. Having regard to the facts and circumstances of this case no notification having been issued, the order of dissolution dated 10.5.2000 contained in Annexure 'P2' is void ab initio and is hereby quashed with effect from the date of this order. In case notification is issued, in that event, copy of such notification may be forwarded to the petitioners within a period of seven days of communication of this order and in that event, this order shall be treated to have been revoked. But such notification must have been issued on or about 10.5.2000 and not 72 hours from 10.5.2000. 18. However on account of no notification having been issued under subsection (2) of section 30 of the said Act, this order will not prevent the authority under sub-section (1) of section 30 to take steps according to the section 30(1) after giving notice and opportunity of hearing and giving reasons in writing. The appropriate authority may also exercise its power under sub-section (2) in the manner as observed above, if it is so advised. Since I have decided the question on the basis of that no notification has been issued as discussed above, therefore the respondents shall be free to take steps on the basis of the same report as was submitted. 19. In the result, the writ petition succeeds. The impugned notification by which the Board was dissolved and administrator was appointed is hereby quashed. Let a writ of certiorari do issue accordingly. Let the petitions be restored to its management forthwith. 19. In the result, the writ petition succeeds. The impugned notification by which the Board was dissolved and administrator was appointed is hereby quashed. Let a writ of certiorari do issue accordingly. Let the petitions be restored to its management forthwith. Let a writ of Mandamus do issue accordingly. The writ petition is thus allowed, subject to the liberty to take appropriate steps in accordance with law as observed above. 20. This order shall govern the other three matters namely W.P. No. 8571(W) of 2000, W.P. No. 8572 (W) of 2000 and W.P. No. 8573 (W) of 2000 which stand allowed on same terms as above. Writ petitions allowed.