Section 31 of the West Bengal Co-operative Societies Act, 1983 is mandatory in nature and non-compliance with its provisions results in the automatic dissolution of the Board of Directors and the vesting of properties in the Registrar.

S. B. SINHA, J, J.

( 1 ) ALTHOUGH I agree with the operative portion of the draft judgment of my learned brother Sengupta, J. keeping in view the importance of the question involved, I intend to add a few words of mine.

( 2 ) SECTION 31 of the West Bengal Co-operative Societies Act reads thus :-"section 31. Dissolution of the board in certain cases and appointment of special officer.- Notwithstanding anything to the contrary contained elsewhere in this Act or in any other law for the time being in force,- (a) the board of directors of any of the co-operative societies mentioned in the Fifth Schedule shall, if the election of its directors has not been held within a period of thirty-six months from the date of their election under sub-section (1) of Section 25, stand dissolved on and from the date immediately following the date of expiry of the said period; (b) with effect from the date of dissolution of the Board under clause (a), the directors thereof shall be deemed to have vacated their offices; (c) upon the dissolution of the board under clause (a), the Registrar shall, by notification, appoint a special officer for managing the affairs of the co-operative society and for making arrangements for reconstitution of the board in accordance with the provisions of this Act, the rules and the by-laws of the co-operative society within a period not exceeding one year from the date of dissolution and, notwithstanding the provisions of Section 25, a board reconstituted under this section shall be deemed to have been validly reconstituted under Section 25 for the purposes of this Act;provided that until a special officer is appointed under this clause, the highest paid executive of the co-operative society, by whatever designation called, shall manage the affairs of the co-operative society. Explanation.- If there is any dispute as to who is the highest paid executive of the co-operative society, Registrar's decision thereon shall be final :[provided further that if the special officer fails to reconstitute the board within one year from the date of dissolution of the board, the Registrar shall remove him from office and shall reconstitute the board in the manner laid down in the proviso to clause (a) of sub-section (1) of Section 25, and the board so reconstituted shall function till the directors of the board elected under Section 25 assume charge;] (d) with effect from the date of dissolution of the board under clause (a)- (i) all properties of the co-operative society shall vest in the Registrar and shall remain vested till a new board assumes office; and (ii) subject to the control and direction of the Registrar, the highest paid executive of the co-operative society or the special officer, as the case may be, shall exercise all the powers and perform all the duties which may, under this Act or the rules or the by-laws, be exercised or performed by the board or any officer of the co-operative society; (e) where a special officer has been appointed under clause (c), the Registrar may, by order, fix the remuneration of the special officer and the remuneration fixed shall be paid out of the funds of the co-operative society; (f) the special officer appointed under clause (c) shall hold office until the board is reconstituted. "

( 3 ) THE said provision contains a non obstante clause which is of wide amplitude. It not only overrides the provision of the said Act but also overrides the provision of any other for the time in force. Such a non obstante clause must be given its full effect. See decision of the Apex Court in the case of M. Venugopal v. Divisional Manager, L. I. C. reported in (1994) 2 SCC 323 : (AIR 1994 SC 1343 ).

( 4 ) THE purport of the said provision is clear from not only the fact that the legislature in its wisdom while fixing the period during which the Board of Directors shall hold their offices has used the word 'shall' which is prima facie mandatory, it has laid the consequence therefor. See K. G. Patel and

Click Here to Read the rest of this document