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2012 DIGILAW 876 (CAL)

Rathin Bhattacharjee v. STATE OF WEST BENGAL

2012-09-18

BISWANATH SOMADDER

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ORDER : Affidavit of service filed in Court today be kept on record. Having heard the learned advocates for the parties and upon perusing the instant application, it appears that the subject-matter of challenge in the instant writ proceeding is a memo dated 24th July, 2012, issued by the Chief Executive Officer of West Bengal State Cooperative Union. While issuing the impugned memo dated 24th July, 2012, the Chief Executive Officer has referred to the proviso of section 36 (c) of the West Bengal Co-operative Societies Act, 2006 (as amended upto date) and has declared that being the highest paid Chief Executive Officer of the Union, he has taken over charge of the Union on 24th July, 2012 at 10.30 a.m. to manage its affairs till further orders in this regard. 2. On behalf of the petitioner, it is submitted that section 36 (c) of the West Bengal Cooperative Societies Act, 2006 does not contemplate of such action on the part of the Chief Executive Officer of the Union. In this context, learned advocate for the petitioner refers to the provisions of the 2011 Amendment Act, whereby certain provisions of the West Bengal Co-operative Societies Act, 2006, stood amended. According to him, section 36 (c) of the West Bengal Co-operative Societies Act, 2006 was substituted in terms of section 12, subsection (b) of the 2011 Amendment Act. 3. On the other hand, learned advocate for the State submits that the applicable provision of law has been misquoted by the Chief Executive Officer. He has, in fact, exercised powers under the provision of section 36, sub-section (d) clause (ii) and not under section 36 (c) of the West Bengal Co-operative Societies Act, 2006. 4. After considering the submissions made by the learned advocates for the parties and upon perusing the relevant provisions of the West Bengal Co-operative Societies Act, 2006, including the 2011 Amendment Act, it appears that section 36 (c) of the West Bengal Cooperative Societies Act, 2006, has been substituted, as rightly pointed out by the learned advocate for the petitioner. 4. After considering the submissions made by the learned advocates for the parties and upon perusing the relevant provisions of the West Bengal Co-operative Societies Act, 2006, including the 2011 Amendment Act, it appears that section 36 (c) of the West Bengal Cooperative Societies Act, 2006, has been substituted, as rightly pointed out by the learned advocate for the petitioner. However, it appears that the relevant provision of law, which was invoked by the Chief Executive Officer is section 36, sub-section (d) clause (ii) of the West Bengal Co-operative Societies Act, 2006, which reads as follows: (ii) subject to the control and direction of the Registrar, the highest paid executive of the co-operative society or the special officer, as the case may be, shall exercise all the powers and perform all the duties which may, under this Act or the rules or by-laws, be exercised or performed by the board or any officer of the co-operative society. 5. The proviso to the above clause, which has no manner of application in the present case, has, however, been omitted by virtue of the 2011 Amendment Act. It is quite evident that the Chief Executive Officer has misquoted the applicable provision of law, for the purpose of taking over charge of the Union to manage its affairs. It is quite well-settled by now that mere misquoting of a provision of law cannot negate the statutory right of an authority to do certain acts and things in terms of the applicable statute. As such, there cannot be any cause for interference in the matter and the writ petition is liable to be dismissed and is accordingly dismissed. 6. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. Petition dismissed.