TMI Blog1996 (6) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners life of the said Board of Directors expired on 22nd February, 1995 and Annual General Meeting was held on 13.2.94 and thus in terms of the provisions of the West Bengal Co-operative Societies Act, 1983 (hereinafter referred to as the 'said Act') the next Annual Genera] Meeting was to be held on 13.2.95. The Board of Directors held a meeting on 4.12.94 fixing 12.2.95 for holding the Annual General Meeting. However, although in the year 1992 the number of the members of the Society was less than 1500, by 31.12.94, the number of members increased to 1714, which not up by 8.1.95 to 2065. Admittedly, in view of the provision of Rule 27 of the Rules framed under the said Act known as West Bengal Co-operative Societies Rules, 1987 (hereinafter referred to as the 'said Rules', in the event number of members exceeds 1560, the delegates are to be elected. As delegates could not be elected, the Annual General Meeting dated 12.2.95 could not be held. Again the Board of Directors met on 19.2.95 and passed a resolution for holding election of the delegates. On 11.7.95, the Assistant Registrar of the Co-operative Societies in reply to a letter of the Society stated that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree years from the date of their election. In support of his aforementioned submission, reliance has been placed on a Division Bench decision of this Court in Ambari Tea Company Limited Ors. v. Nabjushree Saha and Others reported in 1989 (1) Calcutta Law Times (High Court) 61. 4. Mr. De, learned Counsel appearing on behalf of the writ petitioner-respondents however, submits that in view of the provisions contained in Section 5 of the West Bengal Co-operative Societies Act, the provision of the Companies Act would have no application as the said Act is a self-contained code and thus decision of this Court in Ambari Tea Company Limited's Case (supra) cannot have any application whatsoever in the facts and circumstances of this case. The learned Counsel on the other hand, relying on or on the basis of a decision of a learned Single Judge of this Court in Chittaranjan Chakrabarty v. State of West Bengal reported in 1989 (1) Cal LJ 268, submitted that the Board of Directors died a natural death on the expiry of a period of three years. The learned Counsel further submits that in view of the absence of necessary pleadings it cannot be contended that the said Society is a Societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty should be imposed upon the writ petitioner. Reliance in this connection, has been placed on Suraj Kumari v. District Judge, Mirzapur Ors. reported in AIR 1991 Allahabad 75; M/s. Krishna Utensils, Rampur v. State Financial Corporation and Ors. reported in AIR 1989 Allahabad 226 and The Chancellor and Anr. v. Dr. Bijayananda Kar and Ors. reported in AIR 1994 SC 579. It was further submitted that keeping in view the provisions contained in sub-section (3) of Section 25 of the said Act read with sub-section (4) thereof, it cannot be said that the Registrar, Cooperative Societies loses his power on the expiry of fifteen months. Reliance in this connection, has been placed on Bhagirathi Joint Farming Society v. Howrah Zilla Parishad reported in 87 CWN 981. 6. Mr. Chatterjee in reply has relied on a decision of the Supreme Court of India in Jagan Nath v. Jaswant Singh and Ors. reported in AIR 1954 SC 210 as also a passage from Craies on Statute Law, Seventh Edition page 267 for the proposition that a provision should not be held to be mandatory unless penal action is prescribed for noncompliance thereof. 7. The Society is an Agricultural Credit Society and prima-facie i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Act and may appoint office bearers of the Board Section 25(3) and Section 25(4) of the said Act which are material for the purpose of this appeal read thus: -- 25(3) On the failure of the Board to call the general meeting (within twelve months from the date of the last preceding general meeting) the Registrar shall call, or authorise any of his Officers to call, a general meeting within a period of three months from the date of expiry of (the aforesaid twelve months) without prejudice to the penal measures that may be taken under this Act against the Directors of the Board for not holding the general meeting within such period as required under sub-section (2). (4) Notwithstanding anything contained in sub-section (1) sub-section (2) and sub-section (3), the State Government may, in special circumstances, permit the Registrar to call the general meeting even after the expiry of (fifteen months) from the date of the last preceding meeting held under sub-section (1). Section 27 of the said Act provides for management of Co-operative Societies. Sub-section (1) of Section 27 and sub-section (8) thereof read thus:-- (1) There shall be a Board for every Co-operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registrar or the Officer or the person as the case may be authorised by him calls an Annual General Meeting under sub-section (2) of Section 25 of a special general meeting under sub-section (3) of Section 26 or when the Registrar calls an Annual General Meeting under sub-section (4) of Section 25, the Secretary or any other Officer authorised under these rules to call Annual General Meetings and special general meetings shall arrange to issue and despatch the notices of the meetings as may be required by the Registrar or the Officer or the person authorised by him. 19(2)(ii). Where an Annual General Meeting is required to be held by convoking representatives, the election of delegates shall be completed before the period of two months referred to in the clause (i); Provided that in case of failure of the board to take steps or to give directions well in advance towards the holding of such election within the prescribed period the Chairman or in his absence the Vice-Chairman or in the absence of both, the Chief Executive Officer or the Managing Director shall perform such duties on behalf of the board: Provided further that where an Annual General Meeting is called by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Government to permit the Registrar to issue a direction upon the Board of Directors to hold a meeting either within a period of three months from the date of expiry thereof or even thereafter. Had the intention of the law makers been that the Board of Directors would become functus officio, a vacuum would be created and such a vacuum the management of the affairs of the Co-operative Society is not contemplated under the said Act. Furthermore, if the Board of Directors becomes fundus officio only on the expiry of three years in terms of Clause (a) of sub-section (1) of Section 25 of the said Act or the Directors are required to vacate their offices in view of the provision of sub-section (8) of Section 27 of the said Act, sub-sections (3) and (4) of Section 25 of the said Act shall become absolutely otiose and meaningless. The Registrar and for that matter the State cannot direct holding of a meeting of the Board of Directors for the purpose of holding an election in the prescribed manner if the Board of Directors had already become functus officio. It is now a well-settled cannon of interpretation of statute that no provision of the statute should be read as otiose or surplus. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 1989 (1) CLJ 268, no law has been laid down. Furthermore, in that case the Court was considering a matter in respect of a Co-operative Society which comes within the purview of Section 31 of the said Act. Thus the said decision has no application to the facts and circumstances of the present case. In Shiveshwar Prasad Sinha v. The District Magistrate of Monghyr and Anr. reported in AIR 1966 Patna 144, a Full Bench of Patna High Court upon taking into consideration Maxwell on Interpretation of Statutes and Southern-land's Statutory Construction, Third Edition, held that Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, whereby and whereunder fifteen days' notice had not been given by the public servant expressing his intention to vacate the premises to the District Magistrate or the landlord would be directory. The Full Bench of the Patna High Court in the aforementioned case noticed that Section 11(2)(a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 uses the word, 'shall' but despite the same, keeping in view the aforementioned authorities as also the decisions of the Privy Council in Montreal Street Rly Co. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mansfield said in R.V. Loxdale, between circumstances which are of the essence of a thing required to be done by an Act of Parliament and clauses merely directory . In Pearse v. Morrice, Taunton, J. said that he understood 'the distinction to be, that a clause is directory where the provisions contain mere matter of direction and nothing more, but not so where they are followed by such words as' that anything done contrary to these provisions shall be null and void to all intents 8. At page 229 of the said-book, upon which Mr. De has placed reliance, the learned Author states:-- This distinction is reflected in the use of the words, shall or may in a statute. The meaning of these words in statutes conferring a power is the subject of constant and conflicting interpretation. 'May' does not mean 'Must'; 'May' always means 'may'. 'May' is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. The said passage does not militate against the findings of ours referred to hereinbefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd may have different meaning in different context. If the Board of Directors does not become functus officio on the expiry of three years; as a necessary corollary it must be held that the Directors cannot cease to hold the office only because their term for holding office as has been fixed under sub-section (8) of Section 27 of the said Act has expired. Furthermore, in this case a-peculiar situation has arisen. It is not the case of the writ petitioner that the Board of Directors were guilty of any acts of omission or commission. Admittedly, the meeting could not be held as it was found that in view of the subsequent events namely increase in the number of the members of the Co-operative Society above 1500, in terms of Rule 27 of the West Bengal Co-operative Societies Rule, the delegates had to be elected. Such delegates have been elected and in fact Board of Directors have also been constituted on 17th March, 1996. Although we agree with Mr. De's submission to the effect that upon expiry of the fifteen months it is only the State Government who can permit the Registrar to cause a meeting to be held, but such direction must be issued in special circumstances. However, in a si ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
