Saptaparni Cooperative Housing Society Ltd. vs Prof Chitta Mitra and Others

B.M. Mitra, J.—The instant application under Article 227 of the Constitution of India is directed against an order of the Deputy Registrar. Co-operative Societies. West Bengal being appended to the writ petition as annexure ''E'' by which the Deputy Registrar, Co-operative Societies. West Bengal has passed an ad-interim exparte order that the Annual General Meeting of the petitioners Society scheduled to be held on 11.5.97 on 11.5.97 at 2:00 p.m. in the Society''s premises is not to be held until further orders and the same is reflected from a letter addressed to the chairman of the Managing Committee of Saptaparni Co-operative Housing Society Ltd. In the connected notice of the proposed Annual General Meeting for 1996-97 as appearing from annexure ''B'' enclosed to the petition, it appears that multiple items have been included in the agenda thereon. The said order appears to be further passed by the Deputy Registrar of Co-operative Societies. West Bengal. Mr. Saktinath Mukherjee, the Learned Counsel appearing on behalf of the petitioner has relied on and referred to the provisions contained in section 96(3) of the West Bengal Co-operative Societies Act. 1983 and according to him. It is the Registrar who on receipt of an application of any party of a dispute referred to him under Sub-section (1) of Section 95 may make such interlocutory orders on such terms as he may think fit and necessary. Mr. Mukherjee has contended that in view of the terms of Section 96(3) of the West Bengal Co-operative Societies Act there is no power of delegation and as such the assumption of jurisdiction by the Deputy Registrar of Co-operative Society is unauthorised and is by way of irregular exercise of jurisdiction. The said submissions of Mr. Mukherjee cannot be taken very seriously in view of the definition of ''Registrar'' within the meaning of definition clause of Section 2(37) of the West Bengal Co-operative Societies Act, 1983 which means a Registrar appointed u/s 9 and includes any other person appointed under that section to assist the Registrar. In this context, a reference can be made to Rule 2 (b) of the West Bengal Co-operative Societies Rules. 1987 which contemplates Additional Registrar. Joint Registrar. Deputy Registrar. Co-operative Development Officer mean respective persons appointed by those designated by the State Government to assist the Registrar of Co-operative Societies. Therefore, in the backdrop of the definition of the word ''Registrar'' as focused in the Act and also the comprehensive projection of the term as given in the relevant rule as aforesaid, it cannot be said in agreement with the submission of Mr. Mukherjee that assumption of jurisdiction by Deputy Registrar is not permissible and it should ordinarily mean that the order passed by the Registrar will include even an order passed by the Deputy Registrar. It appears that in terms of item No. 3 of the agenda of the proposed Annual General Meeting as appearing in annexure ''B'' appended to the revisional application, election of the new Board of Director of the society is proposed to be held. The said ad-interim exparte order of injunction puts a half to the election process which has been set in motion pursuant to the issuance of the notice dated 16th April, 1997. In this context, it is salient to refer to the observations made by Hon''ble Sri J.S. Verma, J. (now Chief Justice of the Supreme Court of India) in Sewa Sahakari Sanstha Mahagarh and Others Vs. Ramchandra Narayan Kokil and Others, , 164 is a pointer that election process in respect of a Co-operative Society once started should be allowed to continue without any interruption. The same has been approvingly quoted in the case of Ramswaroop Dohare and Another Vs. Ayukt Sahkarith Avam Panjiyak Sahkari Sanstha, M.P. and Others, . Even, in a case of Roopram Vs. State of Rajasthan, , it has been observed indirectly that interference with the case of election should be discouraged. Even, in the case of Narayan Bhaskar Khare Vs. The Election Commission of India, . Supreme Court has observed that the question of exercise of jurisdiction by the Court to enquire into and dispel doubts and disputes arising out of election should be considered after the entire election process is completed. Here, in this case, because of the issuance of an ad-interim exparte order, the process being set on motion seems to have been nipped in the bud at the point of threshold of commencement.

It has been submitted by Mr. Mukherjee that in terms of Section 25(1) of the West Bengal Co-operative Societies Act. 1983, however. Co-operative Societies shall hold at least once in every year a general meeting to be called which is for the purpose of holding election. If the same cannot be allowed to be held within the period of one year which is due to expire on the expiration month of June. Mr. Mukherjee has pointed out that the same is likely to be followed up by pernicicus implications. According to Mr. Mukherjee it is likely to frustrate the operation of the mandatory provision of the Act and if it is not allowed to be held because of the intervention of the court, then election of the office bears will not be possible. In this context, Mr. Mukherjee, the Learned Counsel of the petitioner has referred to decision of Kishen Chand v. Commissioner of Police, reported in AIR 1961, S.C., 705 where the Supreme Court has held that procedural provisions of the statute can also enter into the field of the verdict as to reasonableness. Here, the order impugned may frustrate the very purpose of the statute. The prohibition by way of an ad-interim order of exparte injunction may set at naught the item No. 3 of the agenda of the proposed meeting which will make it impossible for the Co-operative Society to elect the new members in the Board of Directors for the currency of the year.

this Court, accordingly, does not appreciate the extraordinary course of action adopted by the Deputy Registrar by way of an-interim exparte blanket order resulting in stoppage of holding of the proposed election. It is necessary to refer back to the operative part of the exparte ad-interim order of injunction that the said order would operate until further orders. Normally, the exparte ad-interim order of injunction is limited for one month or for a limited period and if it is required to be extended, the same is further required to be backed up with reasons. Decision of the Apex Court in the case of Morgan Stanley Mutual Fund Vs. Kartick Das, may be a pointer to the same and the Apex Court has laid down seven criteria in the said decision and it has opined that before passing an ad-interim order of injunction of exparte nature, the said criteria are required to be adhered to. this Court has no material before it as to the formation of the satisfaction of the concerned authority about presence of those criteria. So far as the prima facie case of the petitioner is concerned, that also seems to have not been properly spelt out because of the itemisation of so many items in the agenda (sic) the proposed Annual General Meeting scheduled to be held. The order also does not appear to be resonant with reasons apart from the application of the yardstick of Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, where orders of such nature which are required to be resonant with reasons. Any order passed by any authority even barring the orders of the judicial or quasi-judicial are followed up by civil consequences, the same should be backed up by reason. Therefore, the order impugned being a drastic one appears at the first blush to be a laconic one. So far as item No. 1 of the agenda is concerned, that is consideration of the minutes of the Annual General Meeting held on 12.5.96 on which nothing has been done as yet. The resolution adopted on such agenda may be the subject matter of a dispute but it is too early for the Deputy Registrar to pass an ad-interim order from taking up that agenda for consideration. There has been some contentious propositions canvassed with regard to items No. 2, 3, 6, 7 and 8 as it has been attempted to be suggested on behalf of the respondents that they are the subject matter of pending controversies having a subjudice character. this Court does not have sufficient materials to go in for sufficient in-depth analysis of the items included and as such it is necessary that decision should be passed about the consideration of the aforesaid items as included in the agenda on the contested hearing in the meeting proposed to be held. There are other items about consideration of report of inspection or enquiry made under the provisions of the West Bengal Co-operative Societies Act and Rules and also matters relating to loans and advances made to the directors of Board and their relatives and actions to be taken for recovery thereof. The other items as itemised in items No. 11, 12, 14, 15, 16 and 17 are contentious matters emanating from pending legal proceedings which have a subjudice character. Only items No. 13, 17 and 18 can be taken up along with items No. 1, 2 and 3 for the purpose of inclusion in the agenda for the time being.

Mr. Mukherjee has however, contended that item for consideration in the agenda are far more different from resolutions adopted on the same item. Unless the items are translated into resolutions, there should not be any exception taken to the same. However, in order to obviate any future controversy, this Court feels that fresh notice should be given in terms of the Act and the Rules for holding the Annual General Meeting including and/or incorporating items No. 1, 2, 3, 13, 17 and 18 as contained in the agenda of the Annual General Meeting and a fresh notice should be made for holding the Annual General Meeting. The other item as included in the agenda may be itemised in the adjourned meeting after hearing of the application for injunction and order is passed on notice to the opposite parties. Mr. Mukherjee has expressed apprehension about the non-holding of the Annual General Meeting in terms of the statute but in this context, a reference may be made to the case of the Chairman. Garbari Union Co-operative Agricultural Credit Society Ltd. & Anr. Appellants v. Swapan Kumar Jana & Ors. Respondents, reported in 1997 (1), C.L.J. 150 where it has been held by the division Bench of this Court that Sub-section (1) (sic) 25 (1) of the West Bengal Co-operative Societies Act. 1983 states that every Co-operative Society shall hold at least once in every co-operative year a general meeting to be called Annual General Meeting for election of the Directors of the Board. The proviso appended thereto postulates that in case of such election cannot be held owing to an order of any court or owing to circumstances mentioned therein and in terms of Sub-section (3) and (4) allows Registrar and in certain special circumstances the State Government to permit the Registrar to issue directions upon the Board of Directors to hold a meeting within a period of three months from the date of expiry thereof and it cannot be said that the Board of Directors become automatically functus officio nor any penal measure can be taken against them if they continue their office after expiry of the said period. As such, the authorities of the petitioner are hereby in terms of the order of this Court authorised to itemise items mentioned in items No. 1, 2, 3, 13, 17, 18 and 19 in the agenda of the notice dated 16th April, 1997. Accordingly, the Secretary of Saptaparni Co-operative Housing Society Ltd. is permitted to convene and hold the Annual General Meeting from 1996 to 1997 only itemising the items referred to above in the agenda to be incorporated to the fresh notice as directed by this Court. The other agenda may be taken up in an adjourned meeting subject to the result after the hearing of the matter before the concerned authority when the present revisional petitioner will show cause to the notice and will file affidavit and after a contested hearing of the pending application for injunction in the connected dispute case. As such, the order impugned is set aside and is superseded by the present order as directed hereinbefore. The revisional application therefore succeeds to the extent as indicated above. The said workable order is passed even after hearing and giving anxious consideration to the submissions of Sri Amal Dutt, appearing on behalf of the respondent No. 2 and Sri Harinarayan Mukherjee for the opposite parties No. 1 and 3 and after giving anxious consideration to the propositions canvassed by the respective parties. While awaiting delivery of judgment, this Court has taken the services of Sri Anupam Chatterjee. Advocate as an amicus curie and record its appreciation for the assistance rendered by him.