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2020 DIGILAW 180 (CAL)

Arup Kumar Bose v. Koushik Bhattacharya

2020-02-10

DIPANKAR DATTA, MADHUMATI MITRA

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JUDGMENT Dipankar Datta, J. - This intra-court writ appeal, at the instance of the respondent no.5 in WP 4274 (W) of 2019, registers a challenge to an order dated January 7, 2020 whereby, a learned Judge of this Court disposed of the writ petition with a direction upon the Cooperative Election Commission (hereafter the Commission), the respondent no. 35 therein, to hold election for constitution of the Board of Directors (hereafter the Board) of Vivekananada Samabaya Abasan Samity Limited (hereafter the Society) within a period of 45 days from date. In the process, the learned judge declined to make any order in respect of such members of the Society who, allegedly, had defaulted in payment of maintenance charges or otherwise, on the ground of a doubt that such notices might have been issued to such defaulters for collateral purposes. It was directed that such defaulters, if at all, should be dealt with by the newly elected board. Further, the Administrator appointed in respect of the Society, the respondent no.2, was directed to remain in-charge thereof till such time the application (sic, election) is completed. All the parties were directed to cooperate in the matter of holding of election. There was also a direction that the newly elected board shall hear out the allegations against the defaulters and deal with them in a manner deemed fit and proper. 2. Can 709 of 2020 is an application for stay of operation of the order under challenge. 3. While hearing the application for stay, we have heard the parties on the merits of the appeal with their consent. We propose to dispose of the appeal as well as the application by this common order, dispensing with all formalities. 4. The basic facts are not in dispute. The Society is a residential cooperative society of which, inter alia, the respondents 1 and 2 herein (hereafter the writ petitioners) and the appellant are resident members. There have been inter-se disputes and differences by and between the members and ultimately the Board of the Society, which was constituted pursuant to an election held on October 1, 2015, was superseded and the respondent no. 4 herein was appointed an Administrator by a notification dated June 19, 2018. The Administrator was appointed for a period of six months within which she was required to hold the election for reconstitution of the Board of the Society. 4 herein was appointed an Administrator by a notification dated June 19, 2018. The Administrator was appointed for a period of six months within which she was required to hold the election for reconstitution of the Board of the Society. The writ petitioners had questioned the order of supersession of the Board of the Society before the Cooperative Tribunal, constituted under section 146 of the West Bengal Cooperative Societies Act, 2006 (hereafter the 2006 Act), in an appeal (No.24 of 2018). It was their claim that the Society could not have been superseded since the Government had neither shareholding in it nor had provided any loan or financial assistance or any guarantee. The tribunal dismissed the appeal by its order dated January 30, 2019 holding that the Government notification by which the Board was superseded and the Administrator appointed, had been issued in exercise of power conferred by section 35 of the 2006 Act read with section 11 thereof and, thus, the order of supersession did not suffer from any legal infirmity. The order of the tribunal was the subject matter of challenge in the writ petition wherein the prayers were to the following effect: "a) A Writ in the nature of Mandamus commanding the respondents to set aside and/or quash the Notification being No. 861-Coop/H/714-12/2017 dated 19.06.2018 and published in the Official Gazette on 19.07.2018 forthwith; b) A writ of in the nature of Mandamus commanding the Respondents to set aside and/or quash the Judgment and order passed on 30.01.2019 by the West Bengal Cooperative Tribunal in Appeal No. 24 of 2018." 5. It is in the aforesaid factual backdrop that the learned judge considered it necessary to issue directions for expediting the election for reconstitution of the Board of the Society. 6. Appearing in support of the appeal, Mr. Gupta, learned senior advocate contended that 34 of the 48 members of the Society are defaulters in payment of maintenance charges continuously beyond a period of 3 months and, therefore, they are liable to be expelled. It is urged that allowing such defaulting members to participate in the election would vitiate the said process. Additionally, it is contended that if such a defaulting member is elected as a member of the Board, it would be difficult, if not impossible, to have him expelled from the Society in future. It is urged that allowing such defaulting members to participate in the election would vitiate the said process. Additionally, it is contended that if such a defaulting member is elected as a member of the Board, it would be difficult, if not impossible, to have him expelled from the Society in future. The prayer, thus, is that members who were sought to be proceeded against by the Administrator should not be allowed to contest and/cast votes in the election and the proceedings initiated against them should be taken to its logical conclusion first. 7. We had called upon Mr. Gupta to draw our attention to any provision of the 2006 Act or the West Bengal Cooperative Societies Rules, 2011 (hereafter the 2011 Rules) which requires a decision to be taken first on the issue of eligibility of a member to contest/vote by an Administrator, whose term of office as provided by the statute has expired. No such provision could be shown by Mr. Gupta. 8. Opposing the appeal on behalf of the writ petitioners, Mr. Bhattacharyya, learned advocate contended that proceedings that were initiated by the Administrator by issuing notices cannot be taken to its logical conclusion because, by virtue of operation of the statute, the Administrator has lost her authority to continue as such. Reference has been made to section 35 of the 2006 Act. For the purpose of overcoming the finding returned by the tribunal, referred to above, he invited our attention to Article 243 ZL of the Constitution and contended that such provision would have effect, notwithstanding anything contained to the contrary elsewhere in any law for the time being in force and, therefore, section 11 of the 2006 Act, even though applied erroneously, must yield to such constitutional provision; hence, issuance of notification purportedly under section 11 would not lend support to any order of supersession of a cooperative society to which the first proviso to section 35(1A) of the 2006 Act is applicable. 9. Appearing on behalf of the Commission, Mr. Sureka, learned advocate submitted that an Assistant Returning Officer has been appointed and the process of conducting election, upon preparation of the voters list and other incidental matters, was in full swing. 10. We have heard the parties. 11. 9. Appearing on behalf of the Commission, Mr. Sureka, learned advocate submitted that an Assistant Returning Officer has been appointed and the process of conducting election, upon preparation of the voters list and other incidental matters, was in full swing. 10. We have heard the parties. 11. Section 35(1) of the 2006 Act provides as follows: "(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, no board shall be superseded or kept under suspension for a period exceeding six months." 12. There is no provision in the 2006 Act permitting an administrator to continue in office beyond six months. That appears to be the position in law, if we read subsections (1) and (1A) of section 35 together. In terms of sub-section (2) of section 35 of the 2006 Act, an administrator appointed under sub-section (1) thereof shall, inter alia, exercise all the powers and perform all the duties which are to be exercised or performed by the board or any officer of the cooperative society under the 2006 Act or the rules or bye-laws. 13. We are inclined to the view that if indeed any member of a cooperative society by his acts of omission/commission exposes himself to be proceeded under Rule 133 of the 2011 Rules, which is the provision dealing with "expulsion of members", action thereunder could be taken by an administrator who has stepped into the shoes of the Board, since superseded, during the period of six months from the date of his appointment. Admittedly, in the present case, the period of six months has expired and the Administrator has no power or jurisdiction to proceed with the notices that she might have issued against the defaulting members of the Society. If indeed any member of the Society is liable to be expelled, such expulsion can be ordered only by a duly elected Board having regard to the fact that the Administrator has become defunct upon expiry of six months. 14. We do not see reason to hold that the learned Judge was in error in holding that the defaulting members ought to be proceeded against by the newly elected Board and not by the Administrator. We encourage the Commission to proceed in accordance with law for forming the new Board upon election being conducted by it as per the West Bengal Cooperative Election Commission Regulations, 2012. We encourage the Commission to proceed in accordance with law for forming the new Board upon election being conducted by it as per the West Bengal Cooperative Election Commission Regulations, 2012. It would be desirable if the election is completed as soon as possible, positively within 90 days from date. 15. The appeal stands dismissed together with the application for stay. 16. There shall be no order as to costs.