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2007 DIGILAW 27 (ORI)

Parsuram Parida v. State of Orissa

2007-01-09

M.M.DAS

body2007
JUDGMENT M. M. DAS, J. : As both the aforesaid writ petitions arise out of identical question of fact and involve similar questions of law, the same are disposed of by this common judgment. 2. The petitioners in both the writ petitions have chal¬lenged the legality of the letter dated 10.5.2005 issued by the Registrar of Co-operative Societies, Orissa-cum-Chief Electoral Officer to all Divisional Electoral Deputy Registrars of Co-operative Societies and Assistant Registrars of all circles in the State annexed as Annexure-7 to the writ petition, i.e., W.P.(C) No.8077 of 2005 and Annexure-11 to W.P.(C) No.9165 of 2005. The programmes of election to the post of President of Balasore District Wholesale Co-operative Store Limited opp.party No.4 which are annexed as Annexure-8 to W.P.(C) No.8077 of 2005 and Annexure-13 to W.P.(C) No.9165 of 2005 have also been chal¬lenged along with Annexures-10 and 12 of the W.P.(C) No.9165 of 2005. The petitioners have further prayed for issuance of a writ of mandamus directing the opp.parties 1 to 3 scrap the election process of the opp.party No.4-Society which was withheld by order dated 28.7.2004 of the Government of Orissa in its Co-operation Department annexed as Annexure-2 and 5 to both the writ petitions and to hold fresh election as per the Orissa Co-operative Socie¬ties Act, 1962 (hereinafter referred to as ‘the Act’) as amended by the Amendment Act, 2004, after effecting amendment to the Orissa Co-operative Societies (Election to the Committee), Rules, 1992. 3. It is the case of the petitioners that the opp.party No.4-Society is a Central Society having its area of operation throughout the Revenue District of Balasore having various services of Co-operative Societies, Weaver Co-operative Socie¬ties, Consumers Co-operative Societies, Fishermen Co-operative Societies, Employees Co-operative Societies etc., as its members. The elected members and office bearers of such primary societies constitute the Electoral College for electing the Directors and office bearers of opp.party No.4-Society. 4. The petitioners in both the writ petitions claim to be the elected members of such Primary Co-operative Societies which are members of the opp.party No.4-Society. The elected members and office bearers of such primary societies constitute the Electoral College for electing the Directors and office bearers of opp.party No.4-Society. 4. The petitioners in both the writ petitions claim to be the elected members of such Primary Co-operative Societies which are members of the opp.party No.4-Society. According to the peti¬tioners, as per the amended Section 28(2) (c) of the Act, which came into force with effect from 27.12.2004, the Committee of a Central Society was required to consist of fifteen members and according to Clause (e-1), thereof, three members out of the said fifteen members should be from Scheduled Caste and Scheduled Tribe, four from other Backward Classes including S.E.B.C. and five from other categories and one member each from Scheduled Caste, Scheduled Tribe and OBC shall be a woman candidate and from other categories two set as shall be reserved for women category. As per Rule 6 (3) of the Orissa Co-operative Societies (Election to the Committee), Rules, 1992 (hereinafter referred to as ‘the Rules), the membership of the Societies was to be organized into different constituencies separately for specified number of representatives from specified classes, such as, S.C., S.T. and O.B.C. and others and its women candidates who were required to be elected from separate constituencies. As per Rule 7(4) of the Rules, a voter whose name appeared in the finally electoral roll for a particular constituency shall be eligible to become a candidate for the office of the member from that constituency. 5. It is alleged by the petitioners that the provisions of the Co-operative Act and Rules creating reservation for the unreserved categories in the matter of election being not in consonance with the spirit and provisions of the Constitution of India and the Representation of Peoples Act, 1950, the State of Orissa felt the need to rectify the defect in the Act and the Rules and decided to stop the election process of the Co-operative Societies which were under progress so that such elec¬tion would be held afresh after incorporating necessary amend¬ments in the Act and the Rules. It is further stated by the petitioners that with a view to stop the election process which have already been started in some of the Co-operative Societies, the State Government in exercise of its power under Section 123 of the Act modified Section 28-B by order No.9774 dated 28.7.2004 and resolved that the State Government shall have the power to withhold the election process of any Co-operative Society at any stage with reasons to be recorded in writing. By the said order, Section 31(1) of the Act was also modified and it was provided that all members, Vice-President and President of all the Co-operative Societies except the societies exempted from the provi¬sions of Section 28-A prior to 28.7.2004 and such Societies in which elections have been completed, shall be nominated by the State Government and the existing nominated Managing Committee, in accordance with Section 28 (2) (g) (ii), shall continue in office till a new committee is constituted by the State. On the same day, i.e., 28.7.2004, another order was issued by the State Government to withhold the process of election of the Members, Vice-President and President of the Managing Committee of all Co-operative Societies in the State, stating the reasons that it has been felt expedient to give due opportunity to the weaker Section to participate in the election of the Co-operative Societies even under other categories. The petitioners have further contended that by the said date, i.e., 28.7.2004, the election process of the members of the opp.party No.4-Society was already in progress and the result of such election of the members was declared in respect of fifteen constituencies and only election of the Presi¬dent and Vice-President of the Committee of Management was await¬ed. As per the programme of election, date for filing nomination for election to the post of President was fixed to 30.7.2004. In view of the order passed by the Government on 28.7.2004, the election process was stopped and the Central Society, i.e., opp.party No.4 was run by appointing the Assistant Registrar of Co-operative Societies, Balasore as the Management-in-Charge by the Orissa Co-operative Societies (Amendment) Act, 2004 which was published in the Gazette on 27.12.2004 and by which, clauses (c), (e-1) and (e-2) of Sub-section (2) of Section 28 were sub¬stituted by a new Clauses (c) (d) (e). By Clause-(d), it was provided that in case of Central Society, two members each shall be from the Scheduled Castes and Scheduled Tribes, three members from Other Backward Classes (including S.E.B.C.) and two members from women categories and out of the S.C., S.T., and O.B.C. categories, one will be reserved for woman category. The Rules were also to be amended in 2005 and by the time the writ petition was filed, draft Rules were notified in the Gazette inviting objections/suggestions within thirty days from the date of such notification, i.e., 28.2.2005 and the period of thirty days expired on 30.3.2005. 6. The grievance of the petitioners is that they being voters of the opp.party No.4-Society, which is a Central Society belonging to O.B.C. category in W.P.(C) No.8077 of 2005 and the Scheduled Tribe Community in W.P.(C) No.9165 of 2005 intended to contest the election expecting that the amendment to the Rules would be brought into force during the first week of April, 2005. The petitioners further allege that without completing the pro¬cess of amendment of the Election Rules, all of a sudden, the Co-operation Department issued direction to the Registrar in its letter dated 7.5.2005 to complete the election process in those Societies in which the election of members was completed before the Amendment Act, 2004 came into force and the Registrar, Co-operative Societies by his letter dated 10.5.2005, which is impugned in the present writ petitions, instructed all Divisional Deputy Registrars and all Circle Assistant Registrars to direct the Election Officers of the Co-operative Societies to resume and complete the remaining process of election in such Societies where election of members of Committee of the Management has been completed fully or partly, prior to the commencement of the Amendment Act, 2004. However, such orders were not published in the Official Gazette. It has been contended by the petitioners that when the election process was withheld on 28.7.2004 and the Amendment Act was brought into force with effect from 27.12.2004, the State Government was aware about the stages of ungoing elec¬tion as on 28.7.2004 and had taken a considered decision to withhold the process of election of all the Co-operative Socie¬ties with the purpose of abolishing the illegal reservation in the un-reserved constituencies. 7. 7. It is further alleged by the petitioners that the direction to complete the process of election as per the pre-amended Act is an arbitrary decision inasmuch as the Act stood amended and the process of amendment of the Rules as at the final stage, and there was no ground for not holding fresh elections as per the Amended Act. Learned counsel for the petitioners contend¬ed that the State Government has no power to direct completion of the process of election under the provisions of the un-amended Act and the order dated 7.5.2005 to complete the process of election has been passed without jurisdiction and is contrary to law. According to him, the Government having once exercised its power to withhold the election for a valid reason is preclud¬ed from recalling the said order till the reason for withholding the elections exist. It further transpires from the writ petition that the election officer of opp.party No.4-Society issued a notice fixing on 29.6.2005 for filing of the objection on the nomination filed for election to the post of President and scru¬tiny of the nomination papers and hearing on the objections. List of valid nomination was fixed to be published on 30.6.2005 and such nominations were permitted to be withdrawn by 1.7.2005 and polling was to be held on 3.7.2005 fixing the same date for declaration of results. Learned counsel for the petitioners con¬tended that once the process of election was stalled by exercise of power under Section 28-B, no nomination could have been re¬ceived after the date of withholding the election, i.e., 28.7.2004, though the election officer in the programme of elec¬tion previously published, fixed to 30.7.2004 as the date for filing of nomination. According to the petitioners, the election officer could not have proceeded from the stage of filing of objections as the election was stalled prior to the last date fixed for filing of nomination papers. 8. According to the petitioners, the election officer could not have proceeded from the stage of filing of objections as the election was stalled prior to the last date fixed for filing of nomination papers. 8. In W.P.(C) No.9165 of 2005, the petitioner has further alleged that though she purchased the nomination papers for con¬testing the election to the post of President of the Societies, but due to the letter dated 28.7.2004 issued by the Government by which the process of election was stalled, she could not have filed the said nomination papers and as the pro¬cess has been revived from the stage of filing of objection to the nomination papers, she has been precluded from contesting the election of President of the opp.party No.4-Society and as all the petitioners were elected as members of primary societies since March, 2003, their terms will be over by February, 2007. 9. In this view of the matter, it has been contended on behalf of the petitioners that if the election of the Central Society-opp.party No.4 will be held now, the members of the Com¬mittee would cease to hold office in the primary Society by the end of February, 2007 and a fresh election would be necessary within one year. Hence, according to the petitioners, it would be appropriate to hold a fresh election in all the Societies as per the new reservation policy instead of completing the election process of the Central and Apex Society in a piece meal manner. 10. The Registrar of Co-operative Societies, Orissa who is the opp.party No.2 in both the writ petitions has filed a counter affidavit in W.P.(C) No.8077 of 2005. It has been stated, inter alia, in the counter affidavit that the petitioners in W.P.(C) No.8077 of 2005, contested in the election to the office of members of the Committee of Management of opp.party No.4 - Socie¬ty and lost the same. If they were aggrieved by such election, they could have challenged the same within two months from the date of election before the Co-operative Tribunal, Orissa under the Act and if they were aggrieved by the action of the Election Officer in conducting the election to the post of President under Annexure-8 to the said writ petition, they could have raised the issue before the Co-operative Tribunal under Section 67-B of the Act instead of approaching this Court in the present writ peti¬tion. Thus, in substance, it is the case of the opp.party No.2 that there being availability of an efficacious alternative remedy, the writ petition (W.P. (C) No.8077 of 2005) is not maintainable at the instance of the petitioners. With regard to the reliefs sought for in the said writ petition, it has been stated in the counter affidavit that there is no provision under the Act to scrap the election process and the election to the post of members of the committee of Management of opp.party No.4 - Society was completed on 1.9.2003 which was withheld by the State Government under Annexure-2 to the writ petition for which the election to the post of President could not be held. A clari¬fication was sought for by the Chief Electoral Officer of the Co-operative Societies of the State from the opp.party No.1, being the State of Orissa in its Co-operative Department, with regard to holding of election to the post of President in respect of the societies where the election to the post of members to the Committee of Management has already been completed. The State Government under Annexure-6 to the said writ petition directed to complete the election process as early as possible where members to the Committee have already been elected. It has been further contended by the opp.party No.2 that though the Act was amended in the year 2004, but such amended provisions do not provide for cancellation of elections which were already held validly and lawfully under the existing Act and the amendments brought in with regard to reservation of seats for S.C., S.T. and OBC etc. do not take away the rights which have already accrued to the elected members of the Committee of Management which includes their right to elect a President from amongst themselves. With regard to the letter dated 17.3.2005 of the opp.party No.2, wher¬eunder he instructed for taking steps to issue two month’s notice so as to complete the election by 2.7.2005 expecting necessary amendments in the election rules by the first week of April, 2005. It has been stated that as the election rules could not be finalized by the expected date, the opp.party No.2 by his letter dated 23.4.2005 (Annexure-5) in W.P.(C) No.8077 of 2005 instruct¬ed not to issue the notice in the absence of amendment of Elec¬tion Rules. 11. It has been stated that as the election rules could not be finalized by the expected date, the opp.party No.2 by his letter dated 23.4.2005 (Annexure-5) in W.P.(C) No.8077 of 2005 instruct¬ed not to issue the notice in the absence of amendment of Elec¬tion Rules. 11. In reply to the allegation that letter dated 7.2.2005 was not published in the Official Gazette, the opp.party No.2 has stated in his counter affidavit that as the said letter was a clarification, non-publication of the same in the gazette is irrelevant as a Gazette Notification is intended for public information whereas the election to the post of President to the Committee of Management is limited to only 15 members who were elected as members of the Committee of Managing and as per the provisions of Rule 4 (a) (d-1) of the Rules, notice containing detailed programme for holding of election of the President is required to be served on all the elected members by registered post with A.D. which was complied with. On the above averments, it has been pleaded that the writ petition, i.e. W.P.(C) No.8077 of 2005 filed at the instance of the petitioners is mis-con¬ceived. 12. However, no counter affidavit has been filed by any of the opp.parties in W.P.(C) No.9165 of 2005. The petitioner in the said writ petition, contested the election as a Scheduled Tribe woman candidate and was declared elected on 1.9.2003. 13. A programme for election to the post of President was issued under Annexure-2 on 2.9.2003, whereunder, nomination papers were to be filed by 22.9.2003. The said election was, however, stalled by Government. Again under Annexure-3 dated 13.7.2004, the amended schedule of election was notified fixing 30.7.2004 as the date for filing of nomination papers. The peti¬tioner in the said writ petition appears to have purchased a nomination paper under the money receipt under Annexure-4. It has been stated by the petitioner that though she purchased the said nomination paper, she was precluded from filing the same as by order dated 28.7.2004 under Annexure-5 to the said writ petition, the said election proposed to be held on 4.8.2004 was kept in abeyance by the Government. By notification dated 23.12.2004 published in the Gazette the Orissa Co-operative Societies (Amendment) Act, 2004 came into operation. By notification dated 23.12.2004 published in the Gazette the Orissa Co-operative Societies (Amendment) Act, 2004 came into operation. It appears that by the notification published on 28.2.2005, draft amendments to the Orissa Co-operative Societies (Elections to the Committees) Rules, 1992 were published in the Gazette inviting objections/suggestions. It would be pertinent to mention that the said Rules were amended with effect from 14.7.2005. By letter dated 23.4.2005, the opp.party No.2, in view of the fact that the Rules were not amended by then, directed to all Divisional Deputy Registrars and Circle Assistant Registrars not to proceed with process of election. It is revealed from Annexure-10, i.e. letter dated 7.5.2005 of the Government addressed to the opp.party No.2 that it was decided that where elections of members of the Com¬mittee were already completed by 28.7.2004 on which date elec¬tions were held up, the same should be resumed and completed as early as possible. Pursuant to the said letter, the impugned letter dated 10.5.2005 was issued by the opp.party No.2 directing the Deputy Registrars and Assistant Registrars to instruct the election officers of concerned Societies to resume and complete the remaining process of election from the stage where it was held up in such societies. As this letter created some confusion, the Government by order dated 24.6.2005 clarified the same. The relevant portion of the said order is quoted hereunder :- “GOVERNMENT OF ORISSA CO-OPERATION DEPARTMENT ORDER Dated, Bhubaneswar, the 24th June, 2005 xxx xxx xxx Now, therefore, in view of aforementioned reasons, in exer¬cise of the powers conferred under Section 28-B of the OCS Act, 1962, the State Govt. in Cooperation Department, do hereby order that where the election of Committee members was not completed as per the notified election programme/schedule before Govt. with¬hold the election process on date 28.7.2004 vide Order No. 9783 dated 28.7.2004, such election process would continue to be withheld till further orders and in case the election process has been wrongly resumed due to misinterpretation by Election Offi¬cers, that should be treated as void ab initio, and with re¬ference to Order No.9303 dated 10.5.2005 of RCS-cum-Chief Elec¬toral Officer of Cooperative Societies, the election process shall be resumed to elect the office of the President and Vice-President in respect of such Co-operative societies only where election of Committee members was complete, notwithstanding vacancies in the Committee due to different reasons. By order of the Governor Sd/- (S.K. Mohanty) Deputy Secretary to Government” But prior to such clarification, it appears that in respect of election of the President of the opp.party No.4-Society, the concerned election officer issued a schedule of resumption of election under Annexure-13 to the writ petition on 18.6.2005 fixing 29.6.2005 for filing objection and scrutiny of nomination papers and 3.7.2005 for holding the election. 14. It is pertinent to mention that the prayer of the petitioners in both the writ petitions for issuing a direction to the State to amend the Rules is no more available to be granted, in view of the fact that the said Rules were amended with effect from 14.7.2005 and the vires of the said Rules being challenged in W.P.(C) No.10301 of 2005 before this Court by judgment dated 20.9.2006 passed in the said writ petition, this Court while declaring that the amendment of Sub rule (3) of Rule 6 of the said Rules made in 2005 are ultra vires to Section 28-A (ii) of the Act, struck down the same. This Court also issued certain directions in the said judgment which are as follows :- “In view of our above conclusion, as it is an admitted fact that election to the Committee of some of the primary societies has already been held in accordance with the un-amended rules and it has been proposed to hold election to the rest of the primary societies by applying the amended rules, we direct that immediate steps shall be taken by the Government to hold election of mem¬bers to the committee of all such primary co-operative societies by applying the rules as it existed prior to the impugned amend¬ment. We further direct that there should be a sincere effort on the part of the authorities of the state to hold election to primary, Central as well as Apex Co-operative Societies in such manner, maintaining uniformity so as to avoid a situation where the election of Central or Apex Societies cannot be held due to expiry of the term of the committee of primary or Central Socie¬ties respectively. The authorities of the State are, therefore, directed to hold elections in accordance with the un-amended rules positively as early as possible for the balance period in order to maintain the democratic set up of the Co-operative Societies, which is a primary object of forming such societies.” However, on the above analysis of the facts, as we find that the petitioners in W.P.(C) No.8077 of 2005 failed to be elected as the members of the Committee of Management of opp.party No.4-Society, they have no locus standi to challenge the election of the President of the said Committee which was proposed to be held on 3.7.2005 in the scheduled of election dated 18.6.2005. Hence, W.P.(C) No.8077 of 2005 is held to be not maintainable. 15. As in W.P.(C) No.9165 of 2005, the petitioner has been elected as a member of the Committee of Management of opp.party No.4-Society and it is seen that though she intended to contest the election to the post of President of the said Committee, but due to the order of the Government, by which the elections were held up to the post of President, she (petitioner) was unable to file the nomination paper, the schedule of election which was issued by the opp.party No.2 on 18.6.2005 resuming the election of President of the opp.party No.4-Society from the stage of receiving objection to nomination papers, cannot be sustained. More so, when, in the initial programme of election, the date of filing of nomination was fixed to 30.7.2004 and election was held up by order of the Government dated 28.7.2004. It appears from the order dated 29.6.2005 passed in W.P.(C) No.8077 of 2005 that this Court directed that the process of election as contemplated under Annexure-8 to the said writ petition, i.e., letter dated 10.5.2005, may be completed but the result thereof shall not be declared without leave of this Court. In view of the said inter¬im order, assuming that the election of the President of the Committee of Management of opp.party No.4 has been completed, results thereof have not yet been declared. 16. In view of the said inter¬im order, assuming that the election of the President of the Committee of Management of opp.party No.4 has been completed, results thereof have not yet been declared. 16. In view of the above position, finding that the peti¬tioner and others who were elected as members of the Committee of Management and intended to contest in the election of the Presi¬dent of the Committee, have been deprived from filing of nomina¬tion papers, the programme of election resuming the same from the stage of filing of objection to the nominations annexed as Annex¬ure-13 to W.P.(C) No.9165 of 2005 is unsustainable and the same is accordingly quashed. It is further directed that a fresh notice notifying the programme of election of President of the Committee of Management of the opp.party No.4-Society shall be issued by the Election Officer of the said Society fixing the dates from the stage of filing of nomination papers and on is¬suance of such notice to all the elected members of the Commit¬tee, the Election Officer shall proceed with the process of election of the President of the said Committee in accordance with law. 17. In the result, W.P.(C) No.8077 of 2005 is dismissed as not maintainable and W.P.(C) No.9165 of 2005 is allowed. There shall be no order as to costs. S. B. ROY, C.J. I agree. One petition dismissed another allowed.