Calcutta High Court (Appellete Side)
Swapan Kumar Gole vs State Of West Bengal Ors on 3 March, 2025
Author: Kausik Chanda
Bench: Kausik Chanda
03.03.2025
Item M.L./10
AN/Ct. No. 15
WPA 309 of 2025
Swapan Kumar Gole
vs.
State of West Bengal ors.
Mr. Jaydip Kar, Sr. Adv.
Mr. Billwadal Bhattacharyya, Sr. Adv.
Mr. Anish Kumar Mukherjee
Ms. Jyoti Routh
Ms. Megha Dutta
Mr. Tamoghna Pramanick
... for the petitioner
Mr. Kalyan Kumar Bandopadhyay, Sr. Adv.
Mr. Sirsanya Bandopadhyay
Mr. Abdul Hamid
Mr. Arka Kumar Nag
Mr. Rahul Singh
Ms. Amrita Tewari
... for the State
Mr. Srijan Nayak
Ms. Rituparna Moitra
... for Cooperative Election Commission
Mr. P. K. Roy, ld. Sr. Adv.
Mr. Ankit Sureka
Mr. Asis Dutta
... for respondent nos. 3, 4
Mr. Pabitra Charan Bhattacharjee
Mr. Sovan Nayak
... for respondent nos. 13, 14, 15
The petitioner is a member of the Contai Co-
operative Agriculture & Rural Development Bank Ltd.
(in short, the Bank). He is one of the directors in the
Board of Directors of the Bank.
This writ petition was filed, inter alia, with the
following prayers:
2
"a) Dispense with Rule 26 of the Writ
Rules framed by the Hon'ble High Court at
Calcutta;
b) A writ of or in the nature of
Mandamus commanding the respondent
authorities and their men, agents and
assigns, particularly respondent nos. 4 and
5 to immediately conclude the process of
Delegate election in the respondent bank by
announcing and/or publishing date and the
schedule for ensuing Delegate election in
Contai Co-operative Agriculture and
development Bank Ltd.;
c) Issue a writ of or in the nature of
Certiorari calling upon the respondents and
each one of them, their men, agents and
assigns to certify and transmit to this
Hon'ble Court the records of the case so that
conscionable justice may be administered by
perusing the same and quashing any
decision for not taking steps to conduct and
conclude the process pertaining to delegate
election in the respondent Contai Co-
operative Agriculture and development Bank
Ltd.;
3
d) Rule NISI in terms of prayers (b) and
(c) above and to make the Rule absolute if no
cause or insufficient cause is shown;
e) Interim order directing the
respondent No. 5 to file a report by forthwith
declaring the date and the schedule of
delegate election in Contai Co-operative
Agriculture and development Bank Ltd;
η Interim order directing the respondent
authorities to constitute the nominated
board consisting of the members of the
present Board of Directors of the respondent
bank in terms of section 29(7) of the West
Bengal Co-operative Societies Act, 2006 till
the election is held in the respondent bank;
g) Ad-interim orders in terms of prayers
(e) and (f) as above;
h) Orders as to costs;
i) Such further and other order or
orders be made and/or direction or
directions be given as to this Hon'ble Court
may seem fit and proper;"
In view of the aforesaid prayers made in the writ
petition, this Court asked the Co-operative Election
Commission, West Bengal (in short, the Election
Commission) to give the proposed election schedule for
4
the delegate election of the Bank. Accordingly, the
Election Commission in course of hearing produced a
tentative election schedule to hold the election on April
20, 2025.
This Court, however, by an order dated February
6, 2025, directed the Election Commission to publish
the revised final voter list on February 12, 2025. After
addressing the objections, it had received regarding the
final voter list published on December 17, 2024.
In course of submission today, it transpired that
by a letter dated February 17, 2025, the Election
Commission asked the State for nomination of a Special
Officer since the tenure of the existing Board is going to
expire on March 8, 2025, and in response, by a letter
dated February 27, 2025, the State recommended the
name of Shri Subrata Gayen, ARCS, Purba Medinipur-
II, to function as a Special Officer after expiry of the
tenure of the existing board.
In view of the stand of the Election Commission
that election of the Bank cannot be conducted before
March 8, 2005, this writ petition was heard to address
the issue as to whether the existing board of the Bank
should be allowed to continue till the election for
reconstitution of the board is held by the Election
Commission.
Mr. Joydip Kar, learned senior advocate appearing
for the petitioner, submits that the Election
5
Commission has deliberately delayed the election
process only with the motive to allow the tenure of the
existing board to expire and to appoint a Special Officer
at the behest of the State.
Mr. Kar submits that by a letter dated August 17,
2024, the Bank requested the Assistant Registrar of Co-
operative Societies to take steps for appointment of a
Returning Officer.
Subsequently, on August 30, 2024, the Assistant
Registrar of Cooperative Societies and Returning
Officer, Purba Medinipur-II Range, Contai, appointed
Shri Shankar Kumar Pradhan, as Assistant Returning
Officer. The Assistant Returning Officer after about one
month took charge of the election and submitted a
charge report on September 27, 2024.
Thereafter, on November 6, 2024, the Assistant
Returning Officer sent a letter to the Chief Executive
Officer of the Bank, requesting him to convene a
meeting for the delimitation of the area of membership
for the election. The Bank took necessary steps and the
Assistant Returning Officer on November 28, 2024,
issued necessary notifications declaring delimitation
into 13 constituencies of the area of membership.
Subsequently, on December 2, 2024, the draft
voter list was published. The final voter list was
published by the Assistant Returning Officer on
December 17, 2024. Thereafter, no steps were taken by
6
the Returning Officer to hold the election, which
compelled the writ petitioner to file this writ petition on
January 6, 2025, with the apprehension that the
election process is being deliberately delayed with the
ill-motive to appoint a Special Officer.
It has further been argued that the Election
Commission should have concluded the election
immediate after expiry of 25 days from the date of
publication of the final voter list on December 17, 2024.
Mr. Kar submits that after the publication of the
final voter list, there was no occasion to rectify it
further. There is no provision in the applicable Rules
which authorises the Election Commission to further
correct or rectify the finally published voter list. The
Election Commission has deliberately consumed time
only to linger the election process in the name of
finalisation the voter list, which was finally published
on December 17, 2024.
By referring to Section 29(5) (a) of the West Bengal
Co-operative Societies Act, 2006 (in short, the Act of
2006). Mr. Kar argues that it was the bounden
obligation of the Election Commission to complete the
election before the expiry period of the existing board
members.
Mr. Kar places reliance upon the judgment
reported at (2006) 8 SCC 352 (Kishansing Tomar v.
Municipal Corporation of the City of Ahmedabad) to
7
argue that Election Commission should not put forward
any excuse based on unreasonable grounds that the
election could not be completed in time.
Mr. Kar submits that the act of the Election
Commission in not conducting the election before the
expiry of the term of the board of the Bank constitutes
legal malice in law. In support of his submission, Mr.
Kar has relied upon a decision of the Karnataka High
Court passed in W.P. No.658 of 2025 (The Primary
Agricultural Credit Co-operative Society Ltd., Antarsante
H.D. Kote, Mysore District-571125 represented by its
President Registered under Karnataka Co-operative
Societies Act, 1959 v. the State of Karnataka and Others)
and a judgement reported at (2010) 9 SCC 437
(Kalabharati Advertising v. Hemant Vimalnath
Narichania).
Mr. Kar further submits that the respondent
authorities cannot take advantage of their own wrong
by deliberately delaying the election process and
appoint an administrator or special officer when the
tenure of the board expires. In support of such
submission, Mr. Kar relied upon a judgment reported at
(2024) SCC OnLine SC 840 (Municipal Committee
Katra v. Ashwani Kumar).
Mr. Kar submits that, in the facts of the case, the
Court should allow the existing board to continue its
functions till the election is held. He further submits
8
that a nominated board should form by the existing
board members to carry out the functions of the Bank
in terms of Section 29(7) of the Act of 2006 till the
election is held. He submits that the office bearers of
the board and its members are also considered officers
of the State within the meaning of Section 4 (47) of the
Act of 2006.
In support of such submission, Mr. Kar has relied
upon a judgment dated April 26, 2022, passed by a
Coordinate Bench of this Court in WPA No.5924 of 2022
(Ramkrishna Das v. The State of West Bengal). The
attention of this Court has also been drawn to a
judgment dated October 11, 2023, passed by another
Coordinate Bench of this Court in WPA No.23439 of
2023 (Shri Subrata Roy v. The State of West Bengal), in
which a learned Single Judge of this Court has held,
inter alia, as follows:
"In the instant case as the tenure of
the Primary Cooperative Societies
expired long back, accordingly, the
Directors of the Primary Cooperative
Societies lose their opportunity to
cast vote for the election of the
Directors of the Central Society. The
State Government, conveniently,
appoints special officers from
amongst the employees of the Central
Society so that the said special
officers can act as per the dictates of
the Government. The aforesaid action
has shown results as the election to
the Central Society has more or less
remained uncontested. The purpose
of the Government to keep control
over the Central Bank appears to
have been taken care of."
9
Mr. Kalyan Kumar Bandopadhyay, learned senior
advocate appearing for the State, on the other hand,
submits that after the expiry of the tenure of the board
members, which is five years, they cannot continue for
even a single day. Mr. Bandopadhyay submits that any
direction to extend the tenure of the board beyond the
five-year period will be contrary to the scheme of the Act
of 2006. A Writ Court cannot issue a mandamus which
is contrary to the statutory scheme. In support of this
submission, Mr. Bandopadhyay has relied upon the
following judgments of the Supreme Court reported at
(1951) SCC 1024 (State of Orissa v. Madan Gopal
Rungta), (2010) 11 SCC 694 (State of West Bengal
v. Subhas Kumar Chatterjee) and (1995) Supp 3 SCC
199 (Hope Textiles Ltd. v. Union of India).
Mr. Srijan Nayak, learned advocate appearing for
the Election Commission, on the other hand, submits
that there are sufficient and justified reasons for not
holding the election during tenure of the existing board.
Mr. Nayak submits that even after publication of
final voter list on December 17, 2024, several objections
were received by the Commission from various parties
concerning the final voter list. The Commission
intended to review these objections and publish a
revised final voter list. Accordingly, a revised final voter
list was published on February 12, 2025, in compliance
10
with order dated February 6, 2025, passed in this
matter.
Mr. Nayak further places on record a report filed
by the concerned Returning Officer to argue that the
election process for the Delegates of the Bank cannot
proceed without completing key tasks. These include
updating the final electoral roll, requisitioning polling
venues, securing polling personnel, and ensuring police
personnel are available for law and order during the
election process.
Additionally, due to the ongoing Madhyamik and
Higher Secondary examinations, the requisitioning of
venues and police personnel during these periods will
be difficult.
To appreciate the controversies involved in this
case, it is necessary to take note of the following
statutory provisions under the West Bengal Cooperative
Societies Act, 2006.
"Section 4- Definitions. - In this Act,
unless there is anything repugnant in the
subject or context, -
....
(47) “Officer” includes a chairman, vice-
chairman, secretary, joint secretary,
assistant secretary, treasurer, director of a
board and managing director, general
manager, deputy general manager, assistant
general manager, development officer, chief
executive, deputy manager, assistant
manager, field executive officer, and any
other person appointed and authorized by
the board to give direction relating to the
affairs of the Co-operative society and also
includes a Government Officer appointed
under section 33 and Special Officer
11
appointed under section 36 or an
administrator appointed by the State
Government or the Registrar under section
34 to manage the affairs of the Co-operative
society;”
……
“29. Annual general meeting. –
…..
(7) “If the election As referred to in the
third proviso to sub-section (1A) of section
35 or in sub-section (2) of section 36 cannot
be held owing to an order of any court or for
any other reasons or if the directors of the
board elected in a general meeting cannot
function owing to an order of any court or of
for any other reason, or if the elected
directors of the board resign simultaneously,
the Registrar may constitute a board of
directors from amongst the members or
delegates or representatives of the Co-
operative Society in conformity with section
32 and the constituted board shall elect its
office-bearers from amongst themselves:
Provided that the board, so constituted,
shall function till the directors of the board
elected under this section assume charge.”
………
“35. Suppression and suspension of
board and interim management. –
[(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:
Provided that in case of a Co-operative
Society carrying on the business of banking,
the provisions of this section shall have the
effect as if for the words “six months”, the
words “one year” had been substituted.]
(1A) ” If the State Government is of the
opinion that
……
(i) has made persistent default; or
(ii) is negligent in the performance of its
duties; or
(iii) has committed any act prejudicial to
the interests of the Co operative Society or
its members; or
12
(b) the constitution or function of any
Co-operative Society has come to a
stalemate, or
(c) the Co-operative Election
Commission has failed to conduct election in
accordance with the provisions of this Act,the State Government may, by
notification stating reasons therefor,
supersede the board and the directors of
such board shall forthwith vacate their
offices and by the said notification the State
Government shall appoint one of its officers
to manage the affairs of the Co-operative
Society who shall be called the
administrator, for the period specified in
sub-section (1):
……”
“Section 36- Expiry of term of board
and appointment of special officer
(1) Notwithstanding
anything contained elsewhere in this
Act or in any other law for the time
being in force, where election of the
board of director of any Co-operative
Society has not been held within a
period of thirty-six months from date
of their election where such election
was held before the date of
commencement of this Act or sixty
months from the date of their
election under sub-section (1) of
section 29 of this Act, as the case
may be, and the State Government
shall, thereupon by notification,
appoint special officer from amongst
its officers for managing the affairs of
the Co-operative Society for a period
not exceeding six months from the
date of such expiry of the period :
Provided that in case of a Co-
operative Society carrying on the
business of banking, the provisions
of this clause shall have the effect as
if for the words “six months”, the
words “one year” had been
substituted;
(2) The special officer appointed
to manage the affairs of such Co-
operative Society shall arrange for
conduct of elections within the
13
period specified in sub-section (1)
and handover the management to
the newly elected board;”
Section 29 (7) can be invoked only when (a) the
election could not be held due to an order of any Court,
or for any other reason, or (b) if the Board of Directors
cannot function owing to an order of any Court, or for
any other reason, or (c) if the elected Directors of the
Board resign simultaneously. In such eventualities, the
Registrar has the authority to constitute a Board of
Directors from among the members or delegates or
representatives of the Cooperative Society in conformity
with Section 32.
A bare reading of the Section 35 (c) of the
Cooperative Societies Act, 2006, makes it clear that the
said provisions can be invoked when the tenure of the
Board is yet to expire and the Election Commission has
failed to conduct the election.
In such eventualities, the State Government has
the discretion to appoint administrator, superseding the
Board. However, such exercise of power must be backed
by a duly notified valid reason.
On the other hand, it is apparent that Section 36
can be invoked when the tenure of the Board has
expired. Section 36 does not contemplate a “failure” on
the part of the Election Commission to hold the election
14in due time. For any reason, if the election is not held
and the term of the board members expires, the
appointment of a Special Officer by the State from its
officers to manage the affairs of the society is
imperative, leaving no scope to extend their tenure
beyond the period of five years from the date of their
election.
In the present case, the State, however, has
decided to invoke Section 36 of the West Bengal
Cooperative Societies Act, 2006, by appointing of a
Special Officer, as is apparent from the order dated
February 27, 2025.
In the facts of this case, it must be held that there
is no scope to apply Section 35 or Section 29 (7) of the
Act of 2006.
The term “legal malice” or “malice in law” has been
explained by the Supreme Court in case reported at
(2010) 9 SCC 437 (Kalabharati Advertising v.
Hemant Vimalnath Narichania) in the following
words:
“Legal malice
25. The State is under obligation to act
fairly without ill will or malice– in fact or in
law. “Legal malice” or “malice in law”
means something done without lawful
excuse. It is an act done wrongfully and
wilfully without reasonable or probable
cause, and not necessarily an act done from
ill feeling and spite. It is a deliberate act in
disregard to the rights of others. Where
malice is attributed to the State, it can never
be a case of personal ill will or spite on the
15
part of the State. It is an act which is taken
with an oblique or indirect object. It means
exercise of statutory power for “purposes
foreign to those for which it is in law
intended”. It means conscious violation of
the law to the prejudice of another, a
depraved inclination on the part of the
authority to disregard the rights of others,
which intent is manifested by its injurious
acts. (Vide ADM, Jabalpur v. Shivakant
Shukla [(1976) 2 SCC 521 : AIR 1976 SC
1207] , S.R. Venkataraman v. Union of India
[(1979) 2 SCC 491 : 1979 SCC (L&S) 216 :
AIR 1979 SC 49] , State of A.P. v.
Goverdhanlal Pitti [(2003) 4 SCC 739 : AIR
2003 SC 1941] , BPL Ltd. v. S.P. Gururaja
[(2003) 8 SCC 567] and W.B. SEB v. Dilip
Kumar Ray [(2007) 14 SCC 568 : (2009) 1
SCC (L&S) 860] .)”
I am of the view that a mere failure to hold the
election in due time may not necessarily always
constitute a malice in law.
The report of the Assistant Returning Officer filed
before this Court may be summarised as follows:
The Co-operation Directorate, Purba Medinipur II
Range, Contai, Purba Medinipur, is responsible for
overseeing the election processes of 865 societies. Within
these societies, 465 are currently without an elected
Board of Directors (BOD), which has led to a backlog in
election procedures. The Co-operation Directorate, under
the guidelines of the Co-operation Election Commission of
West Bengal (CEC.WB), is aiming to complete all
elections by March 31, 2025.
The election for Contai CARD Bank Ltd. is part of
this larger election cycle, with a target date of completion
16by the end of March 2025. The Assistant Returning
Officer for Contai CARD Bank Ltd. was appointed on
August 30, 2024, and assumed charge on September 27,
2024. He, like others in the region, is responsible not
only for the election of the bank but also for the elections
of other societies in the jurisdiction.
The total number of voters for the Bank is 58,146,
with 13 constituencies covering 13 blocks within the
jurisdiction. The election will require the recruitment of
approximately 900 polling staff, who will be drawn from
the district administration and other ranges under the
Co-operation Directorate. Additionally, the election will
require 13 polling venues, one for each constituency, to
ensure smooth execution. In light of the scale of the
election, a significant number of police personnel will
also be necessary to maintain law and order during the
election process.
A petition was filed by some members of the Bank
on December 26, 2024, requesting an update to the final
electoral roll. In response, Respondent No. 5 was
directed by this Court to update the electoral roll by
January 31, 2025. The final voter list was subsequently
published on February 12, 2025. However, the Assistant
Returning Officer was on medical leave from December
26, 2024, to December 31, 2024, during which the
petition was received. Despite this leave, the electoral roll
17was eventually updated as per the directions of this
Court.
Before the election of delegates can take place,
several logistical and administrative tasks must be
completed. These include the requisitioning of polling and
counting venues in the 13 constituencies under the
Contai and Egra Sub-Division, recruitment of polling
personnel, and the deployment of police forces to
maintain law and order. These tasks are further
complicated by the upcoming Madhyamik and Higher
Secondary examinations in West Bengal, which are
scheduled between February 10, 2025, and March 18,
2025. The examination schedules pose significant
challenges, as requisitioning venues and police
personnel during these periods is expected to be difficult
due to competing demands on resources.
Moreover, 13 additional AROs are required for the
delegate election of the Bank. The shortage of available
officers is a key concern. Many officers have already
been assigned to other societies within the jurisdiction,
and election dates for these societies have already been
scheduled. The notification of elections for other societies
is imminent, and all upcoming dates for these elections
have been filled. Furthermore, an order from the
Secretary of the Chief Election Commissioner, West
Bengal, dated December 31, 2024, directs that the
18elections for all cooperative societies in the jurisdiction of
the Contai Range be completed on a sequential basis.
The ARO for the Bank (Respondent No. 5) is nearing
retirement, which adds another layer of complexity to the
process. The appointment of additional AROs is essential
to expedite the election process, as the current ARO may
not be able to carry out the duties for an extended period
due to retirement.
Given the significant number of voters (58,146) in
the Bank and the logistical challenges involved, the
process for preparing and completing the delegate
election will also require considerable time and
resources.
In conclusion, considering the challenges related to
the election process, including the need for updated
electoral rolls, requisitioning polling venues and
personnel, and the impact of competing demands such
as the Madhyamik and Higher Secondary examinations
at least two more moths are required to complete the
election of the Bank.
From the stand disclosed by the Election
Commission, it is apparent that the Election
Commission could not conduct the election due to
administrative and infrastructural constraints and also
for the intervening Madhyamik examination and the
Higher Secondary Examination.
19
A Writ Court, while exercising judicial review over
an administrative decision, should not normally
reassess the ground realities require to be dealt with by
an administrate authority in discharging its statutory
functions. Burden lies heavily upon the petitioner to
make out a case of “legal malice” or “malice in law” by
demonstrating that the act of the authority is deliberate
and with an oblique or indirect object.
The Election Commission ought to have conducted
the election in due time as has been mandated by the
Supreme Court in Kishansing Tomar case. I am,
however, of the view that the facts of the case may
demonstrate failure on the part of the Election
Commission to discharge its obligation to conduct the
election in due time, but this is not an act done
wrongfully or willfully without reasonable or probable
cause.
I also find justification in the submission of Mr.
Nayak that on many occasions, this Court as well as
the Supreme Court directed the Election Commission to
further scrutinise the finally published voter list, for
which the Commission felt it necessary in this case also
to consider the objections placed before it to further
scrutinize the finally published voter list.
I do not approve the appointment of an officer, who
is also entrusted with the duty to conduct the election
20of the Bank, to discharge the function of a Special
Officer.
I, however, cannot accept the argument of Mr. Kar
that the existing board members of the Bank can be
appointed as a Special Officer under Section 35 of the
Act of 2006, since they are the officers of the State
within the meaning of Section 4 (47) of the Act. A bare
reading of Section 4 (47) makes it absolutely clear that
the office bearers of the Board including the Directors,
and the officers of the society are the “officers” within
the meaning of Section 4 (47) of the Act of 2006. An
officer of the State Government can only be said to be
the “officer” within the meaning of Section 4 (47) of the
Act of 2006, only when he has been entrusted to
discharge the functions and duties of a society being
appointed under Sections 33, 34, and 36 of the Act of
2006.
There is no scope to appoint anyone other than a
State Government officer to act as a Special Officer
under Section 36 of the Act of 2006.
In view of the aforesaid, the appointment of Mr.
Subrata Gayen, the Assistant Registrar of Cooperative
Societies, Range II, Purba Medinipore, by the letter
dated February 27, 2025, is set aside.
The present Chief Executive Officer of the Bank,
who is a State Government Officer, is appointed as the
Special Officer of the Bank for a period of one month.
21
I am, however, not inclined to accept the election
schedule proposed by the Election Commission. The
election must be completed soon after the Madhyamik
and Higher Secondary Examination are over. I,
therefore, direct the Election Commission to complete
the election within one month from date, making
suitable modifications in the proposed election
schedule.
The Special Officer will assume his function
immediately after expiry of the tenure of the existing
Board.
Accordingly, WPA 309 of 2025 is disposed of.
All parties shall act on the server copy of this order
duly downloaded from the official website of this Court.
(Kausik Chanda, J.)