* The Jurisdiction of the West Bengal Co-operative Tribunal

Order No. dated 07-08-2013

                Both the sides are present. Today is fixed for hearing a petition dated 06-08-2013 filed by the Appellant to the effect that due to transfer and delivery of charge by the Judicial Member on 31-07-2013, this Tribunal has become dysfunctional as the Section 146(1) of the WBCS Act, 2006 mandates that the Tribunal shall consist of a Chairman and not less than – (i) one judicial Member; and (ii) one administrative Member. Since, after transfer and delivery of charge by the Judicial Member Smt. Sanghamitra Mukherjee on 31-07-2013, the Tribunal has now become dysfunctional on account of the absence of the third Member and as the constitution of the Tribunal as defined above in the WBCS Act, 2006.

                Ld Advocate for the Respondents submit that, this Tribunal constituted two Benches in the past to hear Appeals and other Judicial matters pending before it. One Bench consisted of the Chairman and the Administrative Member; and the second Bench consisted of the Judicial Member and the Administrative Member. Therefore, only one Bench has become dysfunctional on account of transfer and delivery of charge by the Judicial on her transfer. The first Bench consisting of the Chairman and the Administrative Member being a valid Bench that fulfils the requirement of the constitution of a Bench as laid down in the proviso to Sub-Section 4(e)  of Sec.146 of the WBCS Act, 2006,  which reads as follows, “ (e) The tribunal shall exercise jurisdiction, power and authority and perform function conferred or imposed on it by or under this Act by one or more benches, each bench consisting of such number of Judicial Member and administrative Member as may be determined by the Chairman:

                Provided that each such bench shall consist of one Judicial Member and one administrative Member” -  this Bench of the Tribunal can not become dysfunctional and therefore has jurisdiction to hear and decide cases.

          Therefore, we find that apparently there is a conflict between the two provisions of Sec.146 of the WBCS Act, 2006 which reads as follows:

“146. Tribunal: (1) The State Government shall, by notification, constitute one or more Tribunals which shall consist of a Chairman and not less than –

                (i) one judicial Member; and (ii) one administrative Member.

     (2) No person shall be qualified for appointment –

                (a) as the Chairman unless he is or has been a Judge of the High Court or is holding or has held a post not below the rank of Judicial Secretary or Legal Remembrencer;

                (b) as a Judicial Member unless he has held or is holding a post not below the rank of District Judged belong to Higher Judicial Service;

( c)  as an administrative Member unless he has held or is holding a post not below the rank of Joint Secretary in the State Government.

    (3) Where more than one Tribunal is constituted, the State Government shall, by notification, specify the district or districts over which such Tribunals shall have jurisdiction. The Tribunals, so constituted, shall have jurisdiction over the affairs of Co-operative society having registered offices situated within the territorial jurisdiction of such Tribunals.

  (4)        (a) A Tribunal shall exercise all the powers conferred upon an Appellate Court by order XLI in the First Schedule to the Code of Civil Procedure, 1908.

                (b) Any person aggrieved by an order made by a Tribunal may, within ninety days from the date of such order, apply to such Tribunal for review of such order on one or more grounds specified in rule 1 of Order XLVII of the Code of Civil Procedure, 1908.

                © A Tribunal shall not make any order on an application made under clause (b) without giving the person likely to be affected adversely by such order an opportunity of being heard and such application shall be disposed of by the Tribunal within three months from the date of its presentation.

                (d) When an appeal or application for review is filed before a Tribunal, it may make, on such terms and condition as it thinks fit, such interlocutory order as may appear to it just and convenient after giving the parties an opportunity of being heard.

                (e) The tribunal shall exercise jurisdiction, power and authority and perform function conferred or imposed on it by or under this Act by one or more benches, each bench consisting of such number of Judicial Member and administrative Member as may be determined by the Chairman:

                Provided that each such bench shall consist of one Judicial Member and one administrative Member;

                Provided further that if the Judicial Member and the administrative Member of the bench are divided in their opinion on any matter such matter shall be referred to a bench which shall consist of one administrative Member and two Judicial Members of which the Chairman be one:

                Provided also that in the case of difference of opinion between two or more   benches the State Government shall constitute a large bench consisting of such number of members as the State Government may think fit.

                Explanation.- For the purpose of this sub-section Judicial Member shall include the Chairman.

     (5) The State Government shall by notification fix the place at which the Tribunal may hold its sitting.”

Here we would like to emphasise on the words, “The tribunal shall exercise jurisdiction, power and authority and perform function conferred or imposed on it by or under this Act by one or more benches, in Sub-Sec.(4)(e) which makes it clear that the Tribunal exercises Jurisdiction through its Benches.

Hon’ble SC in State of Madhya Pradesh v. Azad Bharat, AIR 1967 SC  276 and in Giriwar Prasad v. Dikhu Lal Das, AIR 1968 SC 90 observed that the word “shall” does not always  mean that the enactment is obligatory or mandatory: it depends upon the context in which it is used, whether it is used in the sense of mandatory or directory:

 Hon’ble SC in CIVIL APPEAL NO. 1921 OF 2006 ( Nagar Palika Nigam vs. Krishi Upaj Mandi Samiti and Ors. AIR 2009 SC 187) where a similar question arose, laid down the law as follows:

        “8. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170], (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728); when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso." Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647) (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors.(AIR 1991 SC 1406), Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors.(AIR 1991 SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. and Ors. (1994 (5) SCC 672).

9. "This word (proviso) hath divers operations. Sometime it worketh a qualification  or limitation; sometime a condition; and sometime a covenant" (Coke upon Littleton 18th Edition, 146)

10. "If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole" (per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256).

11. A statutory proviso "is something en grafted on a preceding enactment" (R. v. Taunton, St James, 9 B. & C. 836).

12. "The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances" (per Lord Esher in Re Barker, 25 Q.B.D. 285).

13. A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jennings v. Kelly [1940] A.C. 206).

14. The above position was noted in Ali M.K. &Ors. v. State of Kerala and Ors. (2003 (4) SCALE 197).

15. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent.

16. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74)) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).

17. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).

18. InDr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. Etc. (AIR 1977 SC 842), it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

19. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515). The legislative casus omissus cannot be supplied by judicial interpretative process.

20. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".

21. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentiusaccidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semelautbisexistitproetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivion idatusdisposition icommunis juris relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."

22. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson 6 H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378).

                  A BENCH of the SC consisting of JUSTICE  S.R. DAS , V. BOSE , N.H. BHAGWATI , B. JAGANNADHADAS , T.L.V. AIYYAR ,B.P. SINHA & S.J. IMAM in BENGAL IMMUNITY CO. LTD. vs STATE OF BIHAR & ORS.,  1955 ( 2 )  SCR  603 on 6.9.1955  approved the principles of interpretation of statutes laid down in Heydon’s case as follows: “It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case, 3 Co. Rep. 7a; 76 ELR. 637, was decided that-".................... for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:-

1st. What was the common law before the making of the Act.,

2nd. What was the mischief and defect for which the common law did not provide.,

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth., and

4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico".

         The law that prevailed prior to the WBCS Act, 2006, was governed by Sec.135 of the West Bengal Co-operative Societies Act, 1983 and Sec.135(1) thereof read as follows:-.“135Tribunal.-(1) (a) The State Government may by notification constitute one or more co-operative Tribunals. A Tribunal shall consist of such number of persons [including a Chairman] possessing such qualifications and shall have such jurisdiction as may be prescribed.

(b) When more than one Tribunal………”

Rule 227 (1) of the W.B. CO-OPERATIVE SOCIETY RULES, 1987 read, Rule 227(1) A Co-operative Tribunal constituted under section 135, hereinafter refers to as tribunal, shall consist of not more than three members. When a tribunal consists of more than one member, one member having the qualification prescribed in clause (a) of sub-rule (2) shall be the President…………”

In actual practice, before coming into force of the WBCS Act, 2006, the Tribunal consisted only of two members and, therefore, in the light of the aforesaid Ruling of the Hon’ble SC this Bench of the Tribunal can not be said to have lost the Jurisdiction or become dysfunctional after the transfer of the Judicial Member in as much as this Bench fulfils the conditions laid down in proviso to Section(4)(e) of the WBCS Act, 2006.

         Hon’ble SC in MOHAN KUMAR SINGHANIA AND ORS. ETC. ETC.        Vs.UNION OF INDIA AND ORS. ETC. ETC in para 2 of their Judgement as reported in 1992 AIR    1=  1991 SCR  Supl. (1)  46= 1992 SCC  Supl.  (1) 594 JT 1991 (6) 261

 1991 SCALE  (2)565 observed:

 “2.         An enactment is never to be held invalid  unless  it be,  beyond  question, plainly and palpably  in  excess  oflegislative power or it is ultra-vires or inconsistent withthe  statutory or constitutional provisions or it  does not conform                to the statutory or constitutional requirements  oris  made  arbitrarily with bad faith or oblique motives  or opposed to public policy. [87 C-D]

    2.1      While interpreting a statute the  consideration   of inconvenience and hardships should be avoided and that when the  language is clear and explicit and the words  used are plain  and unambiguous, the court is bound to construe them in their ordinary sense with reference to other clauses  to the Act or Rules as the case may be, so far as possible,  to make  a consistent enactment of the whole statute or  seriesof  statutes/Rules/Regulations relating to the subject matter.  Added to this, in construing a statute, the court has to  ascertain the intention of the law making  authority  in the  backdrop  of the dominant purpose and  the  underlying intendment of the said statute and that every statute is  to be  interpreted without any violence to  its  language and applied as far as its explicit language  admits  consistentwith the established rule of interpretation. [83 F-G]Maxwell  on the "Interpretation of statutes"  10thEdn.

page 7; Craies on Statute Law, 5th Edn.; 6th Edn., page  89;referred to.” 

           Therefore, the presence or absence of the third Member, i.e. the Judicial Member does not make any difference so far as the decision of this Bench is concerned so long as both the Members come to a unanimous Member. The presence of the third Member becomes essential only when a larger bench is constituted as per the next proviso to Sec.146(4)(e) of the WBCS Act, 2006. In this case, in case there is any difference of opinion between the two Members of this Bench, the matter can be placed before the larger Bench as and when, the third Member joins. But, till there is no difference of opinion between the Members, this Bench of the Tribunal is of the firm opinion that this Tribunal has not lost its Jurisdiction merely because, the Judicial Member (Smt. Sanghamitra Mukherjee)  has delivered Charge of her office on 31-07-2013 after her transfer to Balurghat as Additional District and Sessions Judge, Balurghat. To hold other-wise would not be in the interest of the Administration of Justice as cases of many a parties seeking justice from this Tribunal may get delayed, even when this Bench fulfil all the norms laid down  in the proviso to  Sec.146(4)(e) of the WBCS Act, 2006. Therefore, we do not find any merit in the petition and the same deserves to be  rejected. Hence, it is

ordered,

that the petition dated 06-08-2013 challenging the Jurisdiction of this Tribunal on account of delivery of Charge by the Judicial Member is rejected on contest without costs. Fix 24-09-2013 for hearing of the Appeal.

                                    (Debdas Sarkar)                                                  ( Harjinder Singh)

                                  Administrative Member                                      Chairman,

                                  W.B. Co-operative Tribunal.                               W.B. Co-operative Tribunal.