Orissa High Court
Sri Gobinda Chandra Bisoyi And Ors. vs State Of Orissa And Ors. on 2 May, 1994
Equivalent citations: 1994(II)OLR100
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. The petitioners are members of Jyoti Transport and Service Co-operative Society Limited (for short, "the Primary Society" ), a primary service co-operative society registered under the Orissa Co-operative Societies Act, 1962 (hereinafter referred to is "the Act"). The said Society is affiliated to Aska Co-Operative Central Bank Ltd. ("the Central Society", for shortly They have filed this writ petition seeking a declaration that the notice dated 18. 2.1994 issued by the Election Officer. Central Society is illegal and Ultra-virus since it has been made in contravention of the provisions of the Act and in violation of the cardinal principles of representative democracy. They have also prayed for quashing the order dated 17-2-1994 of the Asst. Registrar, Co-operative Societies, Aska Circle (Annexure 3) authorising Sri P.K. Dalai as Authorised Officer of the Society for a period of six months or till the new Committee of management is constituted whichever is earlier and for appropriate order from this Court to enable them to participate in the election to the Central Society in the same manner as other primary societies affiliated to the Central Society.
2. The relevant facts as stated in the writ application may be stated thus:
The election to the Managing Committee of the Primary Society was held on 29-8-1987. One Kasinath Behera was elected as President. When he expired on 31-7-1990, Shri Kishore Chandra Sarangi, petitioner No. 3, the then Vice-President took over charge as president from 1-8-1990. The term of the Committee expired on 29-8-1991 on completion of four years from the date of assumption of office as provided in Sub-section (1-a) of Section 28 of the Act The new Committee of the Primary Society should have been constituted within six months from 29-8-1991, i. e. by the end of February, 1992, but no step has yet been taken for holding such election, In the meantime the election notice dated 18.2-1994 has been issued by the Election Officer of the Central Society notifying that election of President and members of the Managing Committee to the Central Society will be held on 29-4-1994. It is the case of the petitioners that this has been done intentionally and purposely with a view to deny opportunity to the members of the primary society to take part in the election of the Committee of the Central Society. Despite repeated requests from the petitioners, the Asst. Registrar. Co-operative Societies(opp. party No. 4) to hold the election, no action has been taken in the matter and the affairs of the Society are being managed by the Authorised Officer nominated by the Asst. Registrar. Such action/inaction on the part of the authorities, the petitioners contend, goes against the scheme of the Act and has affected proper functioning of the Primary Society. The petitioners also allege ?mala fide on the part of the oop. parties, that is the State Govt., represented through the Secretary. Department of Co-operation (opp. party No. 1), Registrar, Co-operative Societies, Orissa (opp. party No, 2), Deputy Registrar, Co-operative Societies, Ganjam, Berhamour-curn Election Officer, Aska Co-operative Central Bank Ltd. (opp. party No. 3), Asst. Reaistra', Co-Operative Societies. Aska Circle (opp. party No. 4) in deliberately and intentionally not taking prompt action for holding the election to the Committee of the Primary Society and in proceeding to hold election of President of the Central Society.
3. Opp. parties 1 to 4. in their counter affidavit have denied the allegations made by the; petitioners regarding deliberate and intentional inaction on their part to hold election of the Committee of the Primary Society. They have alleged that steps for holding election of this Society along with other Primary Societies could not be taken for want of intimation from the Chief Executive of the said Society regarding the date of expiry of the term of the Committee and other requisite particulars. According to the odd. parties for want of communi- cation from the Chief Executive of the Primary Society, the Society was considered as defunct and a proposal for placing it under liqui- dation is under consideration. The petitioners have also not made any request to the opp. parties for holding election of the Committee of the Primary Society. According to the opp. parties, the delay in holding election of the Primary Society is not due to any inaction or deliberate move on their part but due to lack of interest and callousness on the part of the Chief Executive of the Society in complying with the statutory requirements. On the averments noted above, the opp. parties prayed for dismissal of the writ application.
4. Shri Pitambar Acharya, learned counsel for the petitioners, raised two main contentions : (0 that the election of the president of the Central Society cannot be held till election to all the Primary Societies affiliated to the Central Society is completed ; and (ii) that inaction and/or failure on the part of the opp. parties in taking steps for holding election to the Committee of the Primary Society is contrary . to the provisions of the Act and has resulted in denial of the right of the members of the Society to elect the Managing Committee and in preventing the President of the Committee from participating in the election of President of the Central Society.
5. Learned Addl, Govt, Advocate appearing for opp. parties 1 to 4 on the other hand contended that there is neither any provision in the Act nor any mandate in law that until election of Committees of all the affiliated Primary Societies is completed, election of members/ President of the Central Society cannot be held. Recounting the aver- ments made in the counter affidavit he -urged that the delay in holding the election of the Managing Committee of the Primary Society is on account of the failure on the part of the Chief Executive of the said Society to furnish the date of expiry of the term of the Committee and other requisite particulars. Despite some efforts on the part of the Asst. Registrar, Co-operative Societies to contact to the Chief Executive of the Primary Society the requisite information could not be obtained and therefore it was not possible to hold election to the Managing Committee of this Primary Society along with other such Societies.
6. We shall now take up first the contention raised on behalf of the petitioners as noted earlier. The contention is that since the election of the Primary Society has been held it is not open to the authorities concerned to issue election notice for election of the Presi- dent of the Central Society vide Annexure-4. Further, some of the petitioners who are aspirants for membership/ presidentship of the Primary Society could have taken part in the election of members/President of the Central Society if the Primary Society election was held in time. Despite his best efforts Shri P. Acharya could not place before us any provision of the Act which expressly or by implication supports the contention raised by him. On the other hand, the provisions in Sections 28 and 28-A of the Act clearly indicate the legislative intent for prompt election of the Committee and the President. It is provided in Sec 28(1-a) that the term of office of the Committee shall be four years from the date of assumption of office by the Committee; the Explanation to the said section lays down that the date of election of the President shall be deemed to be the date of assumption of office by the Committee. Section 28 (1-b) lays down that the expiration of the period of four years shall operate as a dissolution of the Committee and thereupon the members including the President of the Committee shall be deemed to have vacated their offices and if the election of a new committee is not completed by the date of such dissolution, the management of the Society shall vast in the Registrar, and upon such vesting the Registrar or any officer of the State Govt,, the Society or the apex or Central Society to which it is affiliated, authorised by the Registrar in that behalf in writing, shall manage the affairs of the Society and constitute the committee in accordance with the provisions o1 the Act, Rules and the bye-laws within a period of six months from the date of such dissolution. (Emchisis supplied), Since the statute lays stress on holding the election of the committee including the President promptly within a specified time, it is logical and reasonable to think that the election of the committee/President will be held from the elector ": college available at the time. In this connection the decision of the Supreme Court reported in AIR 1974 SC 168.1 (in re Presidential Election, 1974) throws sufficient light. Therein the Court expressed the opinion, inter alia, that the election to the office of the President must be held before the expiration of the term of the President not with- standing the fact that at the time of such election the Legislative Assembly of a State is dissolved. That being the position acceptance of the contention raised on behalf of the petitioners will, in our considered view, mean frustrating the intent and purpose of the statute and therefore not acceptable. Further the question of interfering with the election process of the President of the Central Society which has already commenced on issue of the election notice vide Annexure-4 is not permissible in view of the statutory bar in Section 23-B of the Act. The said section lays down that notwithstanding anything contained in that Act and the Rules, the election process of a Society once started, shall not be held up, and no matter relating to election of that President or members of the Committee shall be called in question before any authority under the Act until the declaration of the result of such election. Therefore the first contention raised by Shri Acharya being devoid of substance is rejected.
7. The second contention raised by Shri Acharya relates to the grievance of the petitioners against inordinate delay in holding election of the Committee of the Primary Society. Concededly the lour-year term of the last elected committee expired on 29.8.1991 and the Committee stood dissolved with effect from that date under Sub-section (t-b) of Section 28. Since the election of a new committee was not completed by the date of such dissolution. management of the Society vested in the Registrar under Clause (ii) to Sub-section (,1-b) of Section 28. The said statu- tory provision mandates that the Registrar or any officer of the State Government, the Society or the Apex or Central Society to which it is affiliated authorised by the Registrar in that behalf in writing, shall manage the affairs of the Society and constitute the commitee in accordance with the provisions of the Act. Rules and the bye-laws within a period of six months from the date of such dissolution- The six months period expired by the end of February. 1992. There is. therefore, little scope for doubt that election of the primary society has been inordinately delayed. As noted earlier the case pleaded by opp. parties in this regard is that steps for holding election could not be taken for want of intimation regarding the data of expiry of the term of the Committee from the Chief Executive of the Society. In this connection it is relevant to refer to the provision in Sec 28-A (3) which provides that the Chief Executive of the Society by whatever designation called, shall intimate the due date of expiry of the term of office to the concerned Election Officer at least three months prior to the said date and Sub-section (4) of the said section provides that the Election Officer shall, within seven days from the date of an intimation under Sub-section(3) or forthwith upon his own information as to the date of expiry of the term referred to in that sub-section, fix the date of election and publish it in the prescri- bed manner, so however that in no case the intervening period between the date of such publication and the date of election so fixed shall be less than two months. Therefore, under the statute, a duty is cast on the Chief Executive of the Society to send an intimation about the expiry of the term of the Committee. That however does not completely absolve the Election Officer of the statutory duty to hold election promptly. As Sub-section (4) indicates, the Election Officer is to take steps for fixing a date of election and for publication of the notice within seven days from the date of receipt of an intimation under Sub sec. (3) or forthwith upon his own information as to the date of expiry of the term as referred to in that sub-section. It is trite to say that the opp. parties were not required to take steps for holding election of the Committee of the Primary Society merely because the Chief Executive of the said Society failed to give the information required under Sub-section (3) of Section 28-A. Be that as it may. the appropriate course in the present fact situation is to direct the opp, parties, particu- larly the opp. party No. 2 Registrar, Co-operative Societies who is the Chief Electoral Officer, the opp. party No. 3 Deputy Registrar, Co- operative Societies, Ganjam, Berhampur-cum-Election Officer, Aska Co- operative Central Bank Ltd. and opp. party No. 6 the Authorised Officer- cum-Sub-Assistant Registrar, Co-operative Societies, Aska who is in charge of management of the Primary Society to hold election of the Committee of the primary Society in accordance with the Act, Rules and the bye-laws expeditiously without further loss of time.
8. On the analysis and the discussions made in the foregoing paragraphs, the writ application is allowed in part and the odd. parties, particularly opp. parties 2, 3 and 6 are directed to bold election to the Committee of the primary Society, Jyoti Transport and Service Co- operative Society Ltd, expeditiously within three months. There will be no order lor costs.
D.M. Patnaik, J.
I agree.