United Order and Supply Co-operative Society Limited v. The State of West Bengal

State is represented by Mr. Mahata, learned Additional Government Pleader and Mr. Galib, learned Senior Government Advocate. An objection has been raised by the learned advocates for the State as to the maintainability of these writ petitions and in support of such contention reliance has been placed upon the decision of the Hon’ble Supreme Court in the case of Census Commissioner and Others Vs. R. Krishnamurthy reported at (2015) 2 SCC 796 and an order dated 24th April, 2025 passed by the Hon’ble Division Bench in WPA (P) 112 of 2025 in the case of Ashes Mukherjee & Ors. Vs. the State of West Bengal & Ors. Heard the learned advocates for the respective parties and perused the materials placed. The petitioner has prayed for issuance of a writ of mandamus commanding the respondent authorities to frame guidelines/scheme for participation of Cooperative Societies in the Government contract to be issued by the respondent authorities. Rule 96 of the West Bengal Cooperative Societies Rules, 2011 states that in 4 respect of any Cooperative Society or class of Cooperative Societies in the interest of promotion of cooperative movement in the State, the State Government may, by general or special order, grant preference or exemption in matters which has been specifically indicated under clauses (i) to (vi) of the said Rule. The expression “may” used in Rule 96 vests the State Government with a discretion in the matter of granting preference or exemption by general or special order. The question that arises for consideration is when the statute vests discretion upon the Government whether a writ of mandamus could be issued directing the State Government to frame a scheme in a particular manner as sought for by the petitioner. Such issue is no longer res integra. In Census Commissioner (supra) the Hon’ble Supreme Court reiterated the view of the Three Judge Bench of the Hon’ble Supreme Court in Suresh Seth Vs. Indore Municipal Corporation reported at (2005) 13 SCC 287 wherein it has been held that the court cannot issue any direction to the legislature to make any particular kind of enactment. In the case of Supreme Court Employees Welfare Association Vs. Union of India reported at (1989) 4 SCC 187 it has been held that no court can direct a legislature to enact a particular law. Similarly when an executive authority exercises a legislative power by way of a subordinate legislation 5 pursuant to a delegated authority of the legislature such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. The Hon’ble Supreme Court reiterated that no mandamus can be issued to enforce an act which has been passed by the legislature. In the case on hand the petitioner seeks a direction upon the respondent authorities to frame a scheme in the light of Rule 96 of the 2011 Rules. When a discretion has been vested upon the Government to grant preference and exemption by general or special order it is for the Government to take a decision in that regard and no mandamus can be issued to frame a scheme giving preference to the co-operative societies in the matter of participation of tenders. The Hon’ble Division Bench in Ashes Mukherjee (supra) after noting the decision of the Hon’ble Supreme Court in the case of Delhi Development Authority, N.D. & another Vs. Joint Action Committee, Allottee of SFs reported at AIR 2008 SC 1343 observed that the High Court cannot direct the respondent to take a policy decision as prayed for. This is exactly what the petitioner in the case on hand has sought for. The learned advocate for the petitioner places reliance upon a decision of the Hon’ble Supreme Court in the case of Yash Pal & Others. Vs. Union of India and others reported at (2017) 3 SCC 272 wherein the issue 6 involved was whether a mandamus could be issued directing the respondents to treat the petitioners as regular civilian employees in the Indian army and whether they should be extended all the benefit which are being given to the regularly employed a recruited portal. The said decision being distinguishable on facts cannot come to the aid of the petitioner. In Azad Richshaw-Pullers’ Union (Regd.), Ch. Town Hall, Amritsar & Others. Vs. State of Punjab Another. reported 1980 (Supp) SCC 601 the Hon’ble Supreme Court observed that a group insurance of rickshaws and the life of rickshaw pliers is feasible, the Municipal Commissioner will work out a scheme in this behalf in consultation with the unions in the field. In that case also a writ of mandamus was not issued directing the authorities to act in a particular manner. The learned advocate for the petitioner further places reliance upon a decision of the Hon’ble Supreme Court in the case of J.L. Koul & Ors. Vs. State of Jammu and Kashmir and others reported at (2010) 1 SCC 371. In the said reported case an affidavit was filed by the respondent authorities stating that the Government formulated a package for return and rehabilitation of the Kashmiri migrant. The Hon’ble Supreme Court after taking note of the fact that the State authorities have framed a rehabilitation scheme and for implementation of the same 7 it has got the resources no further direction was passed and the appeal was disposed of with a pious hope that the State shall take all endeavours to rehabilitate the persons who have been victim of terrorism. The said decision is not an authority for the proposition that a mandamus can be issued to the State authorities to exercise its discretion in a particular manner. For all the reasons as aforesaid, this Court is not inclined to grant any relief to the petitioner. Accordingly, the writ petitions dismissed. There shall be however no order as to costs. Urgent certified photocopy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities. (Hiranmay Bhattacharyya, J.)