The main legal point established in the judgment is the requirement for legally tenable reasons for superseding a validly elected Board of Directors and the importance of compliance with election rules.

JUDGMENT

Sabyasachi Bhattacharyya, J. - W.P.a. No.14296 of 2021 has been filed against an order of the Secretary, Co-operative Election Commission, West Bengal (hereinafter referred to as 'the CEC') dated august 17, 2021 (communicated on august 27, 2021) in Election Dispute No. 01/CEC of 2021, whereby the Returning Officer of the petitioner no. 1-co-operative society was directed to initiate the election process de novo, thereby rendering the erstwhile Board of Directors, of which the petitioner no. 2 was the Secretary, defunct.

2. Learned counsel for the petitioners argues that the impugned decision was passed in an election dispute raised by respondent no. 6, a previous member of the petitioner no. 1-society who had been expelled on charges of misappropriation of funds. It is submitted that a criminal case is also pending against the said respondent on allied charges. Hence, ex facie, the charges were levelled as a backlash, to malign the petitioner no. 2 and the erstwhile Board, which had been instrumental in unearthing the defalcations of the respondent no. 6.

3. Secondly, it is submitted, the impugned decision contains no legally tenable reason for superseding a validly elected Board of Directors and, thus, is vitiated in law.

4. Thirdly, learned counsel contends, it was recorded in the impugned decision itself that quorum was reached in the election of the erstwhile Board of Directors, insofar as 92 out of the total 264 members of the co-operative society had cast their votes. Hence, the Secretary, CEC acted de hors the law and without jurisdiction in superseding the Board on the vague ground of protecting 'the interest of democracy', in violation of Section 35 of the West Bengal Co-operative Societies act, 2006 (hereinafter referred to as 'the 2006 act') and the West Bengal Co-operative Societies Rules, 2011 (in short, 'the 2011 Rules').

5. It is next argued that the provisions of Rule 40(5) of the 2011 Rules were substantially complied with by the Chairman (Presiding Officer) prior to holding the disputed election and publication of the notice was duly made in leading newspapers in Bengali vernacular having wide circulation in the locality. Learned counsel for the petitioners argues that the principles of substituted service were conformed to while giving such notice.

6. Lastly, it is contended that the election was conducted by the CEC under the supervision of a duly nominated aRO (assistant Returning Officer) and, hence, there is a presumption of authenticity attached to it, which has not been rebutted sufficiently to supersede the erstwhile Board of Directors.

7. On such grounds, it is submitted, the impugned decision ought to be set aside and, as a necessary consequence, the appointment of Special Officer to conduct the affairs of the society and its elections should also be nullified. Moreover, it is argued, the said appointment, which has been challenged in W.P.a. No.6121 of 2022, was not in consonance with law.

8. at the outset, learned counsel for the respondents submit that, in the meantime, the order appointing Special Officer has been recalled and an administrator has been appointed to conduct the affairs of the petitioner no. 1-society and its election.

9. Learned counsel for the respondents argue that, contrary to Clause 75 of the Bye-laws of the society, which provide for 9 general members of the Board of Directors, along with 2 women and 1 from the Schedule Castes/Tribes, in total 12 members, the erstwhile Board consisted of 13 members.

10. Section 4(10) of the 2006 act defines 'by-law' and Section 20(2) provides that the function of every co-operative society shall be regulated by its bye-laws, subject to the provisions of the 2006 act.

11. Section 20(2) of the 2006 act, it is submitted, provides that, subject to the provisions of the act, the function of every co-operative society shall be regulated by its bye-laws.

12. The respondents justify the impugned decision by referring to Section 3(ii) of the 2006 act, wh