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2007 DIGILAW 755 (ORI)

Abdulla Khan v. State of Orissa

2007-09-26

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT P. K. TRIPATHY, J. : Petitioners are Plaintiffs in (C.T.) E.D.No. 13 of 2007 pending before the Orissa State Co-operative Tribunal, Bhubaneswar and Annexure-4 is a copy of that election petition. Plaintiffs filed that election dispute impleading Opposite Parties 3 and 4 of this writ petition as Defendant Nos. 1 and 2 in the election petition. D.R.C.S., Balasore and A.R.C.S., Bhadrak have been added as Defendant Nos. 3 and 4. In addition to that Defendant Nos. 5 to 18 in that case are the members who are allegedly illegally elected to the Board of Directors of Padhanpada Seva Samavaya Samiti Ltd., at Nilakarai in the district of Bhadrak. None of the aforesaid Defendant Nos. 3 to 18 have been impleaded as opposite parties in this writ petition. Amongst them, Defendant Nos. 6, 8 and 10 to 18 have filed applications as intervenors and they have been permitted to participate in the proceeding. 2. There is no dispute between the parties that presently no Presiding Officer is posted as Member of the Co-operative Tribunal and a transfer or retirement vacancy exists there. 3. In the election dispute inter alia the plaintiffs stated about various irregularities in preparation of the Voter List and conducting of the election and accordingly made a prayer to declare the entire election process as illegal and to direct the defendants for a fresh election. In the Miscellaneous Appli¬cation No. 126 of 2007 filed before the Tribunal a prayer was made to direct Opposite Parties 1 and 2 and also Opposite Parties 5 to 18 (i.e. the defendants) restraining them from undertaking the further election process to elect the President on the scheduled date i.e. 31.8.2007. Petitioners accordingly approached this Court in the present writ petition on the ground of absence of the Presiding Officer obviously with a view to seek an interim protection in consonance with the prayer as noted above in the Miscellaneous Application. On 30.8.2007 in Misc. Case No. 9909 of 2007 an interim order was passed by a Division Bench of this Court in the following manner : “Considering the facts and circumstances of the case, as an interim measure, it is provided that election of the President of the Society, namely, Padhanpada Seva Samabaya Samiti Limited, Nilakarai in the district of Bhadrak, may be held but the result thereof shall not be declared without leave of this Court.” 4. The intervenors not only oppose to the aforesaid interim order and pray for vacating it but also they argue to dispose of the writ petition leaving the parties to take their chance in the election dispute case. In the above context, various contentions raised on the conduct of the individual members, their credibility and capability to participate in the election are not gone into in as much as the election dispute is pending before the Tribunal which is the forum to adjudicate such dispute on admitting and appreciating proper evidence on record. Then the question arises whether the petitioners are entitled to the interim protection as prayed for. The further question that crops up is whether the Co-operative Tribunal could have granted such interim protection as prayed for by the petitioners. Learned counsel for the intervenors argues that in view of the mandate of Section 28-B of the Orissa Co-operative Societies Act, 1962 (hereinafter referred to as the ‘Act’) the Tribunal has no such power or jurisdiction to grant stay to the election process. He further argues that the provision of Section 67-B of the Act though authorizes and empowers the Tribunal to adjudicate the election dispute Clause (ii) of Sub-section (1) does not supersedes the mandatory provisions of Section 28-B of the Act. In that regard, Mr. Sahu, learned counsel for the intervenors relies in the case of Thabir Charan Mishra versus Member, State Co-operative Tribunal, Orissa and others, 2003 (II) OLR 436 , Rabindra Kumar Das and another versus State of Orissa and others, 1999 (I) OLR 497 and the case of Kailash Chandra Dandpat and others etc. versus Birabhadraswar Weavers’ Co-operative Society Ltd. and others, AIR 1994 Ori. 1 . 5. Mr. Lenka, learned counsel for the writ petitioners on the other hand argues that looking to the nature of allegations in the election dispute and legal incompetency of the persons who participated in the election and the illegalities alleged to have been committed by the Election Officers, by exercising of powers vested in Clause (ii) of Sub-section (1) of Section 67-B of the Act, the Tribunal could have passed an order of stay notwithstanding the provision in Section 28-B. He however does not rely on any citation in support of such contention. 6. 6. After making a close reading of the provisions in Section 28-B and Section 67-B of the Act, we feel that the afore¬said contention of the petitioners is wishful thinking. In fur¬therance thereof both the provisions are quoted below : “28-B. Election process not to be held up - Notwith¬standing anything contained in this Act and Rules, election process of a Society, once started, shall not be held up, and no matter relating to election of the President or members of the Committee shall be called in question before any authority under this Act until the declaration of the result of such election.” “67-B. Powers of the Tribunal - (1)(i) Notwithstanding anything contained in any law for the time being in force, any dispute arising in connection with the election of any office bearer of a Society, or the disciplinary action taken by a Socie¬ty or its committee against any paid servant of the Society who is not a workman within the meaning of Clause (s) of Section (2) of the Industrial Disputes Act, 1947, shall be referred to the Tribunal in the manner and within the period prescribed in that behalf. (ii) If any question arises as to whether a dispute referred to the Tribunal under Clause (i) is a dispute within the meaning of that clause, the decision of the Tribunal thereon shall be final and shall not be called in question in any Court. (iii) All disputes arising in connection with the election of any office bearer of a Society or the disciplinary action taken by Society or its committee against any paid servant of the Society, with whatever authority under this Act, Rules or any Regulations framed under this Act pending as on the date of commencement of the Orissa Co-operative Societies (Amendment) Act, 1991 shall stand transferred to the Tribunal which shall dispose of the same in accordance with law. (2) The Tribunal may, pending the decision of the dispute, make such interlocutory orders as it may deem necessary in the interest of justice. (2) The Tribunal may, pending the decision of the dispute, make such interlocutory orders as it may deem necessary in the interest of justice. (3) The Tribunal may call for and examine records of proceeding in which appeal lies to it, but appeal has not been filed, for the purpose of satisfying itself as to the legality or propriety of any order passed or decision made therein and if any such case it appears to the Tribunal that any order or decision should be revised, modified or annulled, it may make such order as it thinks fit, after affording to the person likely to be affected adversely by such order an opportunity of being heard. (4) While deciding appeals, the Tribunal may exercise all the powers conferred upon the Appellate Court by Order XLI of the first Schedule of the Code of Civil Procedure, 5 of 1908.” 7. It is noticeable from the language employed in Section 28-B that the provisions contained therein are to be enforced notwithstanding anything to the contrary contained in the Act and the Rules whereas Section 67-B overrides statutory provision in any other law. But that does not override the provisions in the Act. Therefore, the authority exercising jurisdiction under Section 67-B of the Act may deal with the categories of disputes stipulated therein but because of the prohibition prescribed under Section 28-B, the Tribunal or any authority exercising jurisdiction under Section 67-B cannot interfere with the process of election of the President or Members of the Committee until declaration of the result of such election. Under such circum¬stances, the Co-operative Tribunal could not have stayed the election process of electing President. Citation relied on by the intervenors (supra) more or less subscribe in the above stated interpretation of Section 28-B of the Act. 8. Incidentally we take note of the misconduct of the petitioners in omitting to add Defendants 3 to 18 as parties to this writ petition. When petitioners have approached this Court for interim relief of stay because of pendency of Election Dis¬pute No. 13 of 2007 and absence of the Presiding Officer of the Co-operative Tribunal, it was incumbent for the petitioners to add all the defendants therein as opposite parties and not to add persons or Officers who were not partly in that dispute. When petitioners have approached this Court for interim relief of stay because of pendency of Election Dis¬pute No. 13 of 2007 and absence of the Presiding Officer of the Co-operative Tribunal, it was incumbent for the petitioners to add all the defendants therein as opposite parties and not to add persons or Officers who were not partly in that dispute. That circumstance and deliberate mistake of the petitioners is suffi¬cient to dismiss the writ petition without admitting it. We are conscious that a procedural lacuna may not be seriously viewed and opportunity should be provided to rectify it. But when such mistakes or omissions are deliberately committed, in such case the aforesaid principle may not be adopted. Be that as it may, for the foregoing interpretation of Section 28-B and its overriding effect, petitioners are not entitled to the relief of stay of election process to the office of President of the Co-operative Society. Accordingly, the writ petition is dismissed. It is needless to point out that the interim order stands discharged on disposal of the writ petition. Petition disposed of.