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Calcutta High Court (Appellete Side)
Kumar Mukhopadhyay vs State Of West Bengal & Ors on 28 August, 2025
28.08.2025
Item no.
PA (Chamber)
FMA/718/2019
KUMAR MUKHOPADHYAY
VS
STATE OF WEST BENGAL & ORS.
IA NO: CAN/1/2019(Old No:CAN/331/2019)
with
FMA/26/2024
THE MANAGING DIRECTORS, THE WEST BENGAL
CO-OPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
SRI PARTHA CHAKRABORTY AND ANR.
IA NO: CAN/1/2024
with
FMA/719/2019
KUMAR MUKHOPADHYAY
VS
STATE OF WEST BENGAL & ORS.
IA NO: CAN/1/2019(Old No:CAN/332/2019)
with
FMA/858/2023
THE MANAGING DIRECTOR ,THE WEST BENGAL
COOPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
SRI PRASANTA DAS AND ANR.
IA NO: CAN/1/2024
with
MAT/1719/2022
NARGIS KHATUN (BIBI)
VS
THE STATE OF WEST BENGAL AND ORS.
with
MAT/1747/2023
THE MANAGING DIRECTOR, THE WEST BENGAL
CO-OPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
SRI AMITAVA SINHA AND ANR.
IA NO: CAN/1/2024
with
MAT/1751/2023
THE MANAGING DIRECTOR ,THE WEST BENGAL
COOPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
SRI AMIT KUMAR ROY AND ANR.
IA NO: CAN/1/2024
with
MAT/1752/2023
2
THE MANAGING DIRECTORS, THE WEST BENGAL
CO-OPERATIVE MILK PRODUCERS FEDERATION
LTD. AND ORS.
VS
MRINAL KANTI DUTTA AND ANR.
IA NO: CAN/1/2024
Mr. Anshunath Chakraborty
..for the Appellant in
FMA 718 of 2019,
FMA 719 of 2019 and
MAT 1719 of 2022.
Mr. Bhaskar Prasad Vaisya,
Mr. Niloy Baran Mandal
..for the Appellants in
FMA 26 of 2024, FMA 858 of 2023,
MAT 1747 of 2023,MAT 1751 of
2023, MAT 1752 of 2023.
Mr. Milan Ch. Bhattacharjee, ld. Sr. Adv.,
Ms. Sulagna Bhattacharya
..for the Respondent no.4.
Mr. Bhaskar Prasad Vaisya,
Mr. Nilay Baran Mandal
..for the respondent nos.5 & 6 in
FMA 718 of 2019 and
FMA 719 of 2019.
1. This Intra Court appeal impugns the order
dated 16.11.2018 passed by learned Single Judge
in WP 14724(W) of 2006 and WP 14725(W) of
2006 whereby the writ petitions of the
appellant/employee were dismissed.
2. When this writ appeal was taken up for
hearing, learned Counsel for the
respondents/Federation raised a preliminary
objection regarding maintainability of writ
petitions by contending that the employee has
3
erroneously invoked the jurisdiction of this Court
under Article 226 of the Constitution of India.
The employer is a co-operative society and is not
amenable to the writ jurisdiction of this Court. It
is strenuously contended that although no
affidavit-in-opposition was filed before learned
Single Bench and before this Court, the objection
of maintainability being a pure question of law
can be raised through oral arguments. Thus,
with the consent of parties, these batches of
matters were heard only on the question of
maintainability.
Contention of Appellant/employee
3. Facts are taken from MAT 1610 of 2018.
4. Learned Counsel for the appellants submits
that the impugned order of the learned Single
Judge is not passed on the aspect of
maintainability. Instead, it is decided on merits.
Since, employer has not raised any such objection
of maintainability before learned Single Judge and
before this Court, the objection is not tenable.
Reliance is placed on the judgment of Supreme
Court in the Deepak Tandon and another. vs.
Rajesh Kr. Gupta reported in 2019 (5) SCC 537
wherein it was held that if a plea regarding
maintainability has not been raised and competent
authority did not decide the said question, it
4
cannot be raised at a later stage of the
proceedings. Reference is also made on a Division
Bench Judgment of Kerala High Court in WA.
No.1873 of 2019 in (Dr. Azad R.P vs. Dr.
Sreedevi K. Nair, Nss Colleges’ Central
Committee, The Nair service society, The
Registrar, Principal Secretary, Dr.
Balachandran. S., Dr. E.B. Suresh Kumar and
Dr. Venugopal. S) wherein judgment of Deepak
Tandon (supra) was considered.
5. Furthermore, it is argued that the question of
maintainability of petition against co-operative
society is not essentially a pure question of law.
The question of ‘maintainability’ depends on
various factors which are also factual in nature
and, therefore, at best, it can be said that question
of ‘maintainability’ is a mixed question of law and
fact.
6. The learned Counsel for employee placed heavy
reliance on Para 7 to 24 of the writ petition to
contend that the necessary pleadings are made to
show about the nature of object, activity, the
financial, administrative and other kinds of control
of the Government on the West Bengal Co-
operative Milk Products Federation Limited (in
short “Federation”). To elaborate, it is submitted
that various clauses of the ‘bye-laws’ show the
5
element of control and the financial involvement of
the Government in the federation and also the
other aspects which will prove that the federation
is either a State or its “instrumentality” within the
meaning of Article 12 of the Constitution.
7. Lastly, the ‘corporate profile’ of federation
reflected on its website is relied upon to project
that federation was registered on 06.06.1983 and
currently its 93 percent of shares are held by
Government of West Bengal.
Contention of Learned Counsel for the
Federation’s stand:-
8. Mr. Milan Ch. Bhattacharjee, learned Senior
Counsel for the Federation strenuously contended
that the question of maintainability of a writ
petition is a pure question of law which can be
raised orally before the Court. He placed reliance
on Section 2(2) of West Bengal Co-operative
Societies Act, 2006 which defines the “Apex
Society”. Section 24 is referred to point out that
final authority of co-operative society is the general
body. Section 55A talks about ‘Board of Directors’
whereas Section 56A describes power and
responsibility of the Board. Learned Senior
Counsel submits that the final authority is the
general body and milk unions have a definite role
in the functioning of the federation. Thus,
6
federation, by no stretch of imagination can be
said to be covered under Article 12 of the
Constitution.
9. It is further argued that no
statutory/mandatory provision of any statute was
breached by the federation and, therefore, the writ
petitions are not maintainable.
10. The reference is made to a Single Bench
Judgment of Calcutta High Court in Bholanath
Roy and others vs. State of West Bengal & Ors.
reported in 1996 (1) CLJ 502 wherein it was held
that milk union is not a ‘State’ and writ petition is
not maintainable. It is reiterated that milk unions
are backbone of the federation and if petition is
not maintainable against the union, it is equally
not maintainable against the federation.
11. The next reliance is on a Bombay High Court
judgment in Sudam Vanaji Shirsat vs. Kari
Sahakari Sangh Ltd. & Ors., reported in AIR
1992 Bombay 347. It is submitted that Bombay
High Court opined that there was no such element
of control of Government on the society which
brings it within the four corners of the Article 12 of
the Constitution. The judgment of Supreme Court
in Ramesh Ahluwalia vs. State of Punjab &
Ors., reported in (2012) 12 SCC 331 is referred
to submit that in view of judgments of the
7
Supreme Court in Pradeep Kumar Biswas vs.
Indian Institute of Chemical Biology, reported
in (2002) 5 SCC 111 and judgment of Ajay Hasia
vs. Khalid Mujib Sehravardi, reported in (1981)
1 SCC 722, if control is merely regulatory whether
under statute or otherwise, it would not serve to
make the body a “State”. An old judgment of this
Court in Arjed Ali Gazi vs. State of West Bengal
reported in (1991) 1 CALLT211(HC) is referred to
show that the Court opined that the Cooperative
society in West Bengal is not a ‘State’ within the
meaning of Article 12 and is also not a public
undertaking. The further reliance is placed on the
judgment of the Supreme Court in Supriyo Basu
& Ors. vs. West Bengal Housing Board & Ors.,
reported in (2005) 6 SCC 289 where it was held
that the society was not a department of the State
and also not a creature of a statute but merely
governed by a statute. No mandatory provision of
a statute is violated and hence petition is not
maintainable.
12. The last reliance is on the judgment of
Supreme Court in S. S. Rana vs. Registrar,
Cooperative Society & Anr., reported in (2006)
11 SCC 634. It is canvassed that merely because
State has power to nominate the members in the
Board of Directors, it cannot be said that State
8
exercised functional control over the affairs of the
society in the sense that majority directors are
nominated by the State. In view of these
judgments, it is prayed that the petition was liable
to be dismissed solely on the question of
maintainability.
13. No other point is pressed by the learned
counsel for the parties. We have heard the parties
at length and perused the relevant pleadings and
provisions.
Maintainability- a pure question of law?
14. Undisputedly, in the instant case, before the
learned Single Judge and before this Court no
response/affidavit in opposition is filed by the
federation taking the objection of maintainability.
Objection is taken by way of oral argument
regarding maintainability. In our considered
opinion, whether a cooperative society falls within
the ambit and scope of Article 12 of the
Constitution of India cannot be a pure question of
law. It depends on the object of society and the
nature of financial, functional and administrative
control/domination of the Government in relation
to each society. Thus, merely because federation
is a cooperative society, as a rule of thumb, it
cannot be said that it is not amenable to the writ
jurisdiction of this Court. Interestingly, this
9
aspect was considered in Para 40 of the judgment
of Supreme Court in Pradeep Kumar Biswas
(supra) and it was held as under:
“40. The picture that ultimately emerges is that the
tests formulated in Ajay Hasia are not a rigid set of
principles so that if a body falls within any one of
them it must, ex hypothesi, be considered to be a
State within the meaning of Article 12. The
question in each case would be – financially,
functionally and administratively dominated
by or under the control of the Government.
Such control must be particular to the body in
question and must be pervasive. If this is found
then the body is a State within Article 12. On the
other hand, when the control is merely regulatory
whether under statute or otherwise, it would not
serve to make the body a State.”
(Emphasis Supplied)
15. A minute reading of this Para makes it clear
like cloudless sky that the question of
maintainability needs to be decided on the basis of
various factors available in each case. Thus, we
find substantial force in the argument of learned
counsel for the appellant that question of
maintainability in a case of this nature, cannot be
said to be a pure question of law. We answer this
point accordingly.
16. Pertinently, the learned counsel for the
federation relied upon various judgments of High
Courts and Supreme Court wherein the Courts
opined that a particular Cooperative society does
not fall within the ambit of Article 12 of the
Constitution. Suffice it to say that in all the
aforesaid judgments on which reliance is placed,
the Courts have considered the necessary
10
ingredients on the strength of which such a
conclusion were drawn. The necessary ingredients
are relating to financial, administrative and
functional control of the Government coupled with
object of the society. Thus, the said judgments
cannot be mechanically applied in the instant
case.
Federation:
17. Admittedly, federation is a Cooperative
Society under the State Act namely, West Bengal
Cooperative Societies Act. Similarly, it is not in
dispute that federation has its ‘bye-laws’. The
Clause 3.1 of the bye-laws is worth mentioning:
“3.1. The Fundamental Objective of the Federation is
to carry out activities for promoting production, procurement,
processing and marketing of Milk and Milk products for
economic development of the farming community through the
affiliated Milk unions.”
(Emphasis Supplied)
18. Similarly, Clause 20.1.1 reads thus:
“20.1.1. 4/7 Board of Directors are government nominee
(mandatorily)-
Two nominees of NDDB
Two nominees of the State Govt. (ARD Dept)
[Note- Additionally, the managing director can also be
a state government nominee.]”
(Emphasis Supplied)
19. The “Corporate Profile” of the federation
shows that it was registered on 06.06.1983 and
currently its 93 per cent share is held by the State
Government. By taking into account the ‘object’ of
the federation, element of control mentioned in
different clauses of bye-laws and the financial
11
control it needs to be examined whether the
society is amenable to the writ jurisdiction of this
Court or not.
20. Interestingly, the similar question cropped up
before the MP High Court and the question of
maintainability of petition was referred to a Full
Bench of the High Court. The Full Bench in
Dinesh Kr Sharma vs. M.P. Dugdh Mahasangh
Sahakari Samiti Maryadit, reported in 1993
MPLJ 786 opined that federation is not a ‘State’
within the meaning of Article 12 of the
Constitution. The correctness of this decision was
again referred to a 5 judges’ Special Bench of the
High Court. The Special Bench in M. P. State Co-
operative Dairy Federation & Ors. vs. Madan
Lal Chourasia, reported in 2007 (2) M.P.L.J. 594
opined that federation is amenable to the writ
jurisdiction of the High Court.
21. In Para 8, the above Special Bench considered
the litmus test laid down by the Supreme court in
the case of Ajay Hasia (supra) in order to
ascertain whether the body is financially,
functionally and administratively dominated by or
under the control of the Government. After
considering the main ‘object’ of the federation, the
Special Bench opined that the purpose and object
is for conducting various programmes of
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manufacture, collection, processing, distributing,
sale of milk and milk products for the economic
development of farmers and for developing and
safeguarding the milk business, milk producing
animals and for economic development of groups
engaged in milk production. Justice A. K. Patnaik
(as His Lordship then was) speaking for the Special
Bench recorded as under:
“Bye-law 3.2 states that for accomplishing the object indicated
in bye-law 3.1, the Federation will perform various other
functions mentioned therein. It is not necessary to refer the
functions of the Federation stated in bye-law 3.2 of the Bye-
laws of the Federation as the main object of the
Federation discussed above clearly show that the work
of the federation relates to economic development of
farmers, who are engaged in production and sale of
milk in the State of Madhya Pradesh and this work has
been taken up by the State Government through the
agency of the federation because development of milk
and milk products and economic development of
farmers carrying the business of sale of milk and milk
products are part of the functions of a welfare State.”
(Emphasis Supplied)
22. In the instant case, Clause 3.1 of bye-laws of
federation shows that the nature of activity and
objective of present federation is almost similar to
the activity of federation which was party before
the Special Bench in MP High Court. The object is
to uplift economic development of farming
community.
23. The learned counsel for the
appellant/employee strenuously contended that at
present, 93 per cent of share of federation is held
by State Government. The “Corporate Profile” was
referred to establish the same and pertinently this
13
factual aspect has not been refuted by the learned
counsel for the federation. The Special Bench in
Madan Lal Chourasia (supra) opined that more
than 90 per cent of share capital of federation is
held by the Government and accordingly there
exists a financial domination/control of the
Government. The Special Bench further recorded
as under:
“In respect of the financial control, the case of the
Federation is similar to the case of the “CSIR” in
Pradeep Kumar Biswas (supra) and “the Corporation” in
Virendra Kumar Srivastava (supra) in which the Supreme
Court has held that the CSIR and the Corporation are
financially dominated by the Government. Accordingly,
we hold that the Federation is financially dominated by
the Government.”
(Emphasis Supplied)
24. In tune with this finding, we are constrained
to hold that in the instant case since more than 90
per cent of the share capital is held by the
Government, it can be safely held that federation is
financially dominated by the Government.
25. The Clause 20.0 deals with “Board of
Directors”. It reads thus:
“20.1.1. The Board will consist of the following:
i) Chairman of the affiliated Milk Unions.
ii) Registrar, Cooperative Societies, or his
authorised representative
iii) Two nominees of NDDB
iv) Two nominees of the State Govt. (ARD Dept.)
v) Managing Director of the Federation (Ex-
officio)”
(Emphasis Supplied)
26. A plain reading of Constitution of board shows
that 4 out of 7 Board of Directors are Government
nominees. Two nominees are of National Dairy
14
Development Bank, a Central Government
Organisation. Two nominees are of State
Government. The Managing Director can also be a
State Government nominee. It is thus clear from
aforesaid composition of board of directors of the
federation that Government has sufficient number
of nominees in the board of the federation. The
Board of Directors of the federation have all the
administrative power to run the federation. The
similar was the situation in the case of Pradeep
Kumar Biswas (supra) and Virendra Kumar
Srivastava vs. U.P. Rajya Karmachari Kalyan
Nigam, reported in (2005) 15 SCC 149.
27. Upon consideration of these factors, we have
no cavil of doubt that the federation is financially,
administratively and functionally dominated or
controlled by the Government of West Bengal. In
our view, such domination and control is pervasive
in nature and therefore, federation is certainly
amenable to the writ jurisdiction under Article 12
of the Constitution as per the law laid down in the
majority judgment of the Supreme Court in the
case of Pradeep Kumar Biswas (supra). A
holistic view of the object, functioning of the
federation makes it clear that State Government
has pervasive control on the federation. Merely
because milk union is held to be not a ‘State’ by
15
this Court will not take Federation out of the
purview of Article 12 of the Constitution. We
respectfully agree with the view taken by the 5
Judges (Special Bench) of MP High Court in the
case of Madan Lal Chourasia (supra). Once, we
hold that the federation is covered under Article 12
of the Constitution, its decisions become subject
matter of judicial review on permissible legal
parameters. One such legal parameter is flowing
from Article 14 of the Constitution of India. In
other words, the decision of federation can be
tested on the anvil of breach of fundamental rights
and aspects of fairness/non-arbitrariness etc. In
this view of the finding, the judgment of Supriyo
Basu (supra) is of no help to the federation for the
simple reason that in the said case, the Apex
Court has not tested the action/order on the anvil
of fundamental rights or on the aspects of fairness
and non-arbitrariness etc. Thus, preliminary
objection raised by federation is overruled.
(SUJOY PAUL, J.)
(SMITA DAS DE, J.)
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