Seth, J. - (1.) The learned Single Judge was pleased to hold that a nominal member is exempted from payment of stamp duty by virtue of the circular issued by the State Government, which is at page 91 of the Paper Book.
(2.) Mr. Bhattacharya, the learned Counsel appearing for the appellants, contends that by reason of Section 60 sub-section (2), exemption is permissible only in respect of the members of the Co-operative Society on instruments executed by such member in favour of the Co-operative Society and a nominal member is not a member within the definition of Section 2(28) of the West Bengal Co-operative Societies Act, 1983 and he cannot enjoy any right or privilege by reason of Section 69(3), particularly, in view of the by-laws of the Society which denies the privilege to a nominal member. Mr. Bhattacharya also relied on the Memo No. 4755 dated 29th of December 1999, Memo No. 1485 dated 28th of February 2000 and Memo No. 3893 dated 13th of October 2000 where from he points out that a nominal member is not exempted from payment of stamp duty on the document executed by him in favour of the Co-operative Societies.
(3.) Mr. Chatterjee, the learned Counsel for the respondents, on the other hand, points out that a nominal member is as good a member subject to Section 69(3) as defined under Section 2(28) of the Act and that Section 60 sub-section (2) of the Act does not exclude nominal members since sub-section (2) of Section 60 uses the expression 'member' without any qualification which has to be read according to the definition thereof. Any circular or correspondence, issued by the executives, contrary to the provisions contained in the statute cannot supercede the statutory provisions. When the power is conferred upon the State, unless specifically excluded, the nominal members cannot be denied to their rights if they come within the definition of 'Member' and they are not otherwise exempted by reason of Section 69(3) of the Act. Therefore, according to Mr. Chatterjee, the learned Single Judge was right in holding that the nominal memberwas also exempted under the Circular dated 15th of November 1995.;