2015 Supreme(Cal) 496

IN THE HIGH COURT OF CALCUTTA
Dr. Manjula Chellur and Joymalya Bagchi, JJ.
Nirmal Utthasini - Appellant
Versus
The State of West Bengal & Ors. - Respondents
F.M.A. Nos. 2351, 3681 of 2014, M.A.T. 1520 of 2013 and C.A.N. 10148, 11447 and 10447 of 2013
Decided On : 16.10.2015.

Headnote:

The High Court held that the Validating Act of 2013 was intra vires the Constitution of India and was not violative of Article 14 or 243 ZJ(2) of the Constitution.

Fact of the Case:

The West Bengal Co-operative Societies Act of 2006 (Act of 2006) was passed by the West Bengal Legislative Assembly on 10.3.2006. The Act of 2006, however, was not notified to come into effect at once. The Act of 2006 repealed the West Bengal Co-operative Societies Act, 1983. Section 6 of the new act provided that any action done under the repealed act, namely, West Bengal Co-operative Societies Act, 1983 shall be deemed to have been done under the Act of 2006 as if the provisions of the Act of 2006 were in force at all material times. Sections 29(5) read with Section 32(5) and Section 36 of the new act provided that the term of the Board of Directors of the Cooperative Societies shall be for a period of 60 months from the date of election. On 18.1.2011 the West Bengal Co-operative Societies Act, 2006 was brought into force by notification in Official Gazette. On 30.1.2001 State legislature passed the West Bengal Co-operative Societies (Amendment) Act of 2011 (amending Act of 2011) which received the assent of the Governor. By the amending Act of 2011, Section 36 of the Act of 2006 was amended and the tenure of the Board of Directors of Co-operative Societies who had been elected prior to coming into force in the Act of 2006 was fixed at 36 months. It is relevant to note that the tenure of the said Co-operative Societies were for a period of 36 months under Section 27 (8) of the repealed Act. On 15.2.2012 Constitution 97th Amendment Act, 2011 was assented by the President and the Constitution stood amended by incorporation of Part IX B therein. Article 243 ZJ (2), inter-alia, provided that the tenure of the Board of a Co-operative Society shall be for 5 years from the date of its election. On 27.2.2012, petitioners filed writ petition challenging the vires of the Amending Act of 2011, particularly, Section 12 (a)(ii) thereof amending Section 36 of the Act of 2006, as afore stated. On 17.10.2012 a learned Single Judge of this Court declared Section 12 (a)(ii) of the Amending Act of 2011 ultra-vires on the ground: (i) that the aforesaid amending provision was ultra-vires Section 6 of the Act of 2006 which inter-alia, provided that acts done under the repealed Act will be deemed to have been done under the Act of 2006 as if the provisions of the said Act were in force at all material points of time; (ii) that the impugned amending provision was violative of Article 14 of the Constitution as it created an arbitrary and discriminatory classification between Co-operative Societies elected under the Act of 2006 and those elected under the repealed Act of 1983 in view of the aforesaid legal fiction under Section 6 of the Act of 2006. On 3.4.2012 the State Government preferred an appeal being AST No. 339 of 2012 challenging the aforesaid judgment and order of the learned Single Judge dated 17.10.2012. Said appeal came to be withdrawn on 17.1.2013. On 4.2.2013 the West Bengal Co-operative Societies (Amendment and Validation) Ordinance 2013 was promulgated. In the report submitted to the Governor for promulgation of the said ordinance, a reference was made to the defect in legislative draftsmanship of the amending Act of 2011 as pointed out in the aforesaid judgment and order dated 17.10.2012. Reference was also made to the anomalous situation created in various cooperative societies due to disputes cropping up between new Boards elected after expiry of three years pursuant to various orders passed by this Court in different writ petitions and the previous Boards who claimed to have been revived upon the declaration of the amending Act of 2011 as ultra-vires. On 6.2.2013 W.P. No. 3829 of 2013 was filed challenging the aforesaid ordinance. On 26.4.2013 during the midst of hearing of the aforesaid writ petition West Bengal Co-operative Societies (Amendment and Validation) Act 2013 (hereinafter referred to as the Validation Act of 2013) was passed by the State legislative and published in the Official Gazette. It came into force from 4.2.2013, i.e. the date of promulgation of the ordinance. On 26.4.2013 it was assailed in the present writ petition. On 13.9.2013 a learned Judge of this Court declared the Validating Act of 2013, ultra-vires as it sought to nullify the earlier judgment and order dated 17.10.2012 passed by this Court, as stated above.

Finding of the Court:

The High Court held that the Validating Act of 2013 was intra vires the Constitution of India and was not violative of Article 14 or 243 ZJ(2) of the Constitution.

Issues: 1. Whether the Validating Act of 2013 received assent by the President of India prior to its promulgation. 2. Whether the Validating Act of 2013 seeks to nullify the effect of the earlier judgment asked by this Court in W.P. No. 4009 of 2012 and takes away a right accrued to the Co-operative Societies elected under the repealed Act in terms of the legal fiction under Section 6 of the Act of 2006. Validating or curative legislation may cure or change the substratum of law but cannot nullify the effect of an earlier judgment conferring rights in favour of an individual. Moreover, a Validating Act is a product of legislative arbitrariness and is violative of Article 14 of the Constitution as it seeks to differentiate between Boards elected under the repealed Act of 1983 and the new Board under the Act of 2006 without any rational basis whatsoever. 3. Whether the Validating Act is violative of Part IXB of the Constitution of India particularly Article 243 ZJ (2) thereof, in as much as it reverts the tenure of the Boards of the Co-operatives elected under the repealed Act of 1983 from five years to three years.

Ratio Decidendi: 1. The High Court held that the Validating Act of 2013 was not required to receive presidential assent since it did not impinge upon any provisions of the specified Central legislations which were enumerated in the report submitted to the President of India at the time of grant of assent to the parent Act, namely, Act of 2006. 2. The High Court held that the Validating Act of 2013 did not seek to nullify the effect of the earlier judgment passed by the Court in W.P. No. 4009 of 2012. It only sought to cure the legislative defect and was subjected to exceptions specifically provided otherwise in the Act. The Court held that the Validating Act of 2013 was a legislative exercise undertaken pursuant to the judgment and order dated 17.10.2012 in W.P. No. 4009 of 2012 and not one which seek to invalidate the impact of such judgment. 3. The High Court held that the Validating Act of 2013 was not violative of Article 243 ZJ(2) of the Constitution of India. The Court held that the provisions of Part IXB of the Constitution were prospective in nature and would apply to a Board whose members were elected after incorporation of the said part and not in respect of a Board which had been elected prior to its incorporation. The Court further held that Article 243 ZJ(2) of the Constitution of India cannot be construed as a Board elected pursuant to the provisions of Part IXB of the Constitution of India or the statutory scheme under the Act of 2006 so as to enjoy a tenure of five years as envisaged therein.

Final Decision: Appeal allowed.