Orissa High Court
Prafulla Pradhan vs State Of Orissa And Ors. on 6 April, 1998
Equivalent citations: AIR1998ORI168, AIR 1998 ORISSA 168
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.C. Naik, J.
1. The petitioner, who is a member of the Agency Marketing Co-operative Society Ltd., Tikabali (hereinafter referred to as 'the Society') has filed this petition praying for issuance of an appropriate writ, direction or order declaring Clauses 30 and 31 of the Bye-laws of the Society unconstitutional and void, and for a declaration that reservation of the said constituency for women for the second time is violative of Article 14 of the Constitution. His further prayer is for issuance of a direction commanding the opposite parties not to reserve any constituency for women or in the alternative to reserve the constituencies on rotation.
2. The case of the petitioner is that action of the Society in reserving 1/3rd of the constituencies for women is contrary to the statutory provisions and is, therefore, bad in law. It is submitted that reservation of five constituencies out of fifteen constituencies is bad as Clauses 30 and 31 of the Bye-laws are illegal, arbitrary and irrational. It is further submitted that reservation of constituencies, namely,' Tikabali, Raikia, Phulbani, Baliguda and Kotagada for women as per the bye-laws of the Society is bad in law and violative of rights guaranteed under Article 14 of the Constitution as by parmenent reservation, the women from other constituencies will be deprived of being elected from reserved constituencies and likewise, the male members of these constituencies will for all times to come have to be debarred from contesting the election.
3. In response to the notice issued by this Court, opposite parties 3 and 4 have entered appearance and filed their counters. It is the case of opp. party No. 4 that initially the Society was divided into twelve constituencies, out of which four were reserved for women members. However, after amendment of Section 20 by the Orissa Co-operative Societies (Amendment) Act, 1994, by Act 23 of 1994 which came into force with effect from 1-1-1995, the Bye-laws of the Society were amended whereunder the then existing twelve constituencies were reconstituted into fifteen constituencies out of which five were reserved for women. This amended provision provides that in case of a Primary Society other than a large scale multipurpose Adivasi Cooperative Society, Primary Agricultural Credit Co-operative Society and a Service Co-operative Society including a Farmers' Service Co-operative Society, 1/3rd of the total number of elected members of the Committee shall be women. It is also averred that considering the fact that the Act does not provide for reservation of constituencies by rotation, the action of the Society is reserving five constituencies cannot be said to be illegal.
4. The relief claimed by the petitioner is denied by the Society, inter alia, on the ground that 1/3rd of the constituencies have been reserved for women in view of the provisions contained in Clause (d) of Sub-section (2) of Section 28 of the Act, as amended by Act 23 of 1996, which came into force with effect from 1-1-95. It is further submitted that this was the first election taking place after the amended provisions came into force and in absence of any precedent or guideline, the method adopted by the Society, in their view, was proper. It is also submitted that intention was not to reserve these constituencies in perpetuity as it would be open to the Committee to take appropriate action regarding reservation of constituencies for women when elections are to be held.
5. Having heard learned counsel for the parties and having gone through the relevant provisions and the Bye-laws, we are of the opinion that the action in reserving 1/3rd out of the total number of constituencies for women is neither illegal nor arbitrary. Section 28 of the Act was amended by the Orissa Co-operative Societies (Amendment) Act, 1994, Clause (d) of Sub-section (2) whereof reads thus :
"(d) In the case of a Primary Society other than a Society specified in Clause (b) and (c) one-third of the total number of elected members of the Committee shall be women, so however that the said one-third shall also include one from the Scheduled Castes, one from Scheduled Tribes and one from the Other Backward Classes."
In view of this amendment, the earlier Bye-law was amended by providing that five seats would be reserved for women. This was naturally with a view to bring the bye-law in line with the amended provisions, prior to the amendment, the area was divided into twelve constituencies/zones out of which four, namely; Tikabali, Raikia. Phulbani and Tumudibandha, were reserved for women. But in view of the amended provisions, five constituencies out of fifteen, were required to be reserved for women and this is what has been provided for by the amended bye-law. In this view of the matter, the contention that reservation of five constituencies for women is illegal, cannot be accepted.
6. The other contention of the learned counsel for the petitioner is that reserving particular constituencies for women, for all times to come, will have the effect of depriving the women of other constituencies to contest the election from the reserved constituencies and likewise, the male members of those constituencies will also be deprived from contesting the election for all times to come, needs to be considered. It is, therefore, submitted that Bye-law 31 which provides for reservation should be quashed or at any rate reservation of constituencies for women should be by rotation. In this context a reference is made to Articles 243D(3) and 243T(3) of the Constitution of India which provides for reservation of seats for women in Grama Panchayats, Panchayat Samities, and Municipalities, and further, such scats may be allotted on rotation to different constituencies.
7. To begin with, we may add that though by amendment of Section 28 of the Act, the legislature has provided for reservation of 1/3rd of total number of seats for women in Co-operative Societies, it has not prescribed any method for reservation of seats like it has done in the case of Municipalities, Panchayat Samities and Gram Panchayats by Section 11 (4) of the Orissa Municipal Act, Section 16 (2) of the Orissa Panchayat Samiti Act and Section 10 (4) of the Orissa Grama Panchayat Act which provide that 1/3rd of the total number of seats shall be reserved for women and allotted by rotation to different constituencies of the Municipality, Panchayat Samiti or Grama Panchayat, as the case may be. Thus, in absence of any provision or guideline in this behalf, the Committee of Management reserved five constituencies for women that is to say Block Nos. 1, 3, 5, 7 and 9 out of fifteen constituencies and left the rest of the constituencies as unreserved ones. As this was the first election held after the amended provisions came into force, the action in treating the first, third, fifth, seventh and ninth constituency as reserved constituencies cannot be said to be arbitrary or unreasonable as the Committee had to evolve some method for reserving five constituencies for women. There is nothing on record to indicate that this reservation is for all times to come. Indeed, this is also negatived by the contention of the learned counsel for the Society that there is neither any decision nor any intention of the Committee of Management to reserve these constituencies for women for all times to come. It is stated at the Bar in the light of the averments made in paragraph 16 of the counter affidavit that necessary decision regarding reservation of constituency will be taken by the Committee of Management before each election.
8. The contention of the learned counsel for the petitioner that the reservation will deprive the voters of their fundamental right and likewise affect the right of male candidates to contest from a particular constituency for all times to come, cannot also be accepted. In this regard, we may state that right to elect or to be elected is not a fundamental right, but a statutory right and is governed in accordance with the relevant statutory provisions. Therefore, the right to elect or to be elected will have to be exercised in accordance with the statute. The legislature has provided for 1/3rd reservation of total number of constituencies for women probably keeping is view the constitutional provisions relating to Municipalities, Panchayat Samities and Grama Panchayats No doubt, Article 243 of the Constitution is silent as regards reservation of 1/3rd constituencies for women is respect of co-operative societies, but it does not follow that the legislature of the Stale could not provide for such a reservation. As cooperative societies fall within Entry 32 of List II of the Seventh Schedule of the Constitution, the State Legislature is fully competent to frame laws relating to co-operative societies. Hence, it was also competent to provide for reservation of 1/3rd of the total number of constituencies for women. Probably, this was thought necessary because the legislature felt that women should also be more actively involved in the management of co-operative societies and be properly represented just like in Municipalities, Panchayat Samities and Grama Panchayats. The contention that such reservation is bad, therefore, cannot be accepted.
9. This brings us to the contention that a direction should be issued to provide for reservation of constituencies of co-operative societies for women by way of rotation. We are afraid that such a direction cannot be issued as the power to legislate is with the legislature and no direction can be issued to it to legislate in a particular manner. Though this Court can interpret and reconcile a statute and also examine whether there was legislative competence to legislate on a particular subject, it cannot legislate and issue a direction in the nature sought for. We, however, hope that since the legislature has provided for reservation of 1/3rd of total number of seats for women in co-operative societies just like it has done in the case of Municipalities, Panchayat Samities and Grama Panchayals, it may consider the desirability for providing a similar method for reservation of constituencies for women, as has been provided under Section 11 (4) of the Orissa Municipal Act, Section 10 (4) of the Orissa Grama Panchayat Act and Section 16 (2) of the Orissa Panchayat Samiti Act, so as to avoid further litigation in this regard. We may, however, express that the Committee of Management shall see that the same constituencies are not reserved for women at successive elections.
The writ application accordingly stands disposed of.
P.K. Mohanty, J.
10. I agree.