Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 257 (ORI)

Sangha Samabaya Chini Silpa v. State of Orissa

2015-04-16

A.K.RATH

body2015
JUDGMENT Dr. A.K.RATH, J. - Aggrieved by and dissatisfied with the action of opposite parties in not allowing the petitioner to participate in the election scheduled to be held on 19.04.2015, the petitioner has filed the present writ petition. 2. The case of the petitioner is that the Aska Cooperative Sugar Industries Ltd. had been registered under Orissa Cooperative Societies Act. The Certificate of Registration was issued to the Society in the year 1956 by the Deputy Registrar of Cooperative Society, Southern Division, Orissa. The said Society had been established with the aim and object of proper development of agricultural industry amongst members on co-operative and joint farming methods. The membership consists of three classes i.e., (a) Producer members (b) Ordinary members, and (c) Nominal members. The Producer members are producer of sugar cane. The ordinary membership is open to Cooperative Societies, Gram Sabha (Grama Panchayats), Panchayat Samiti other persons and institutions interested in the welfare of the cane growers and sugar industries having the requisite qualifications as per the bye-laws. Nominal membership is open to individual and firms with the qualification as per the bye-laws. but they have no right to cast vote. They cannot participate in the management of the society. It is stated that the Aska Cooperative Sugar Industry Ltd. was initially a primary society. The same was declared as a Central Society since 1996 by the Registrar, Cooperative Societies (hereinafter referred to as “Central Cooperative Society”). From the time of its declaration as a Central Society no election had been held to the managing committee. The sugar industry was established in the year 1959 and treated as a primary cooperative society and election to the said Society was conducted like Primary Cooperative Society. The first election was conducted in the year 1972. Seven directors were elected by the producer members and ordinary members excluding nominal members. It is further stated that the bye-laws of the Central Cooperative. Society was amended making its area operation to the whole of the State of Orissa. As per the bye-laws of the society, the ordinary members are elected representatives of weaver societies, marketing societies, fishery societies and the like societies, who have no knowledge about the sugar industry and the sugar cane farmers and, therefore, have no competence to represent the producer members or to supervise the sugar industry and the sugar cane farmers, if elected to the managing committee. The sugar cane growers are the primary members and share holders. They supply raw materials i.e., sugar cane to the industry. Therefore, the farmers have direct relationship with the industry. Nearly ten thousand farmer families depend on sugar industry for their livelihood having their stake in the development of the industry, therefore, the managing committee should constitute the representatives of the primary sugar cane growers. It is further stated that the Deputy Registrar of Cooperative Society, Berhampur Division, Berhampur by letter dated 07.02.2015, vide Annexure-I, addressed to all the election officers of Central Cooperative Societies under its Division, intimated the decision to. hold the election of the Central Cooperative Societies on the appointed dates. So far as the present Central Cooperative Society is concerned, date of election has been fixed as 19.04.2015 and the Election Officer has been directed to issue two months notice by 16.02.2015. Pursuant to the letter dated 7.2.2015, vide Annexure-1, the Election Officer, Aska Cooperative Sugar Industries Ltd., i.e., Sub-Collector, Bhanjanagar issued election notification on 11.02.2015. In the said list appended to the notice, the producer members were conspicuously absent. It is further stated that before the letter dated 07.02.2015, vide Annexure-I, was issued, the Deputy Registrar, Cooperative Society, Berhampur Division, Berhampur by its letter dated 04.02.2015 addressed to the Registrar Cooperative Society, Odisha had intimated about the peculiarities of the Central Cooperative Society and the predicament of sugar cane growers of Ganjam district, who are not only individual members of the industry, but are major stake holders actively participating in the determination of price of sugar cane grown by them. In the said letter, the Deputy Registrar requested the Registrar that the individual members of Central Cooperative Society be called to cast their votes in view of its unique character. It is further stated that the petitioner filed a representation on 13.02.2015 before the Registrar, Cooperative Society, Orissa for taking necessary steps to allow the sugar cane growers to participate in the election to the managing committee of the Central Cooperative Society. 3. With this factual scenario, prayer has been made for a direction to the opposite parties to allow the producer members i.e., the first category members as the sugar cane grower to participate in the election scheduled to be held on 19.04.2015 by including their names in the list already prepared. 4. 3. With this factual scenario, prayer has been made for a direction to the opposite parties to allow the producer members i.e., the first category members as the sugar cane grower to participate in the election scheduled to be held on 19.04.2015 by including their names in the list already prepared. 4. Pursuant to the issuance of notice, a counter affidavit has been filed by the opposite parties 4 and 5. The sum and substance of the case of the opposite parties 4 and 5 is that the writ petition is not maintainable in view of the alternative remedy available under law to raise an election dispute under Section 68 of the Orissa Cooperative Societies Act before the State Cooperative Election Tribunal. It is stated that the Aska Cooperative Sugar Industries Ltd. Nuagam, Aska is a Central Cooperative Society declared by the Registrar of Cooperative Societies, Odisha, Bhubaneswar, vide order No.20098 dated 21.12.1996. The electoral college for the purpose of Clause [ii-a], sub Section (1) of Section 28-A of the OCS Act consists of the elected members of the committee including the President and the Vice President of the society affiliated to the Central Society and fixation of the date of election of the members of the committee, on the recommendation of the State Cooperative Election Commission, by publication of a notification at least two months in consultation ‘with the Election Officer. It is further stated that since the members of the Sangha are the sugarcane producers, the members can safeguard their interest through their societies affiliated to the Central Cooperative Society. It is further stated that initially the sugar industries was registered as a Primary Society but it was declared by the Registrar of Cooperative Societies, Odisha to be a Central Society with effect from 21.12.1996. The membership of the sugar industries consists of not only weavers cooperative societies, marketing societies, fishery societies, but includes primary agriculture cooperative societies as well. Thus it can not be said that the existing members of sugar industries have no competence to represent the producer members. Most of the members of the primary agricultural cooperative societies are producer members of the sugar industries and are also competent to safeguard the interest of producer members. It is further stated that the opposite party no.4 has intimated the opposite party no.3 about the constitution of membership of the Central Cooperative Society. Most of the members of the primary agricultural cooperative societies are producer members of the sugar industries and are also competent to safeguard the interest of producer members. It is further stated that the opposite party no.4 has intimated the opposite party no.3 about the constitution of membership of the Central Cooperative Society. So far it relates to the cast of votes. Since the statute has provided that only the eligible Cooperative Societies who are the representatives of the members including the producer members to cast their vote to elect the committee of management of Central Cooperative Society, the prayer of the petitioner to allow them to participate in the election process deserves no consideration. The affiliated societies are eligible members of the Central Cooperative Society. Accordingly, notice has been published by the Election Officer. Besides that no eligible member has been deprived of his voting right for electing the members of the committee of the Central Cooperative Society keeping in view the amendment of the Odisha Cooperative Societies Amendment Act, 2011 & 2012. In the instant case, only primary cooperative societies, which are affiliated to the Central Cooperative Society are eligible to participate in the election to its committee. 5.A rejoinder affidavit has also been filed controverting the allegations made in the counter affidavit. 6. Heard Mr. A. Dash, learned Advocate for the petitioner and Mr. B.P. Pradhan, learned Additional. Government Advocate for the opposite parties 4 and 5. 7.The seminal point that hinges for consideration of this Court is as to whether this Court in exercise of its power under Article 226 of the Constitution can interfere to stop election in the midway when the process of election has been set into motion. 8.Before proceeding further, it is apt to quote here Section 28-B of the Orissa Cooperative Societies Act. “28-B. Election process not to be held up - Notwithstanding 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 of members of the Committee shall be called in question before any authority under this Act until the declaration of the result of such election.” 9. The Constitution Bench of the Supreme Court in N.P.Ponnuswami Vrs. The Constitution Bench of the Supreme Court in N.P.Ponnuswami Vrs. Returning Officer, Namakkal Constituency, Namakkal, A.I.R.1952 SC 64 held that the right to vote or stand as a candidate for election is not a civil right, but is a creature of statute or special law and must be subject to the limitations imposed by it. It was further held that the law of elections in India does not contemplate that there should be. two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any Court. 10. The same view was echoed in Nanhoo Mal and others Vrs. Hira Mal and others, AIR 1975 SC 2140 . It was held that after the decision of the Supreme Court in N.P. Ponnuswami (supra), there is hardly any room to entertain the application under Article 226 of the Constitution in matters relating to election. In both the cases, the Supreme Court had occasion to deal with the provisions of the Representation of the People Act. 11. In Anugrah Narain Singh and another Vrs. State of UP and others, (1996) 6 SCC 303 , the Supreme Court on interpretation of 243-ZG of the Constitution, which pertains to stay of election to the Municipal Corporation, held that once the process of election has been set into motion, the Court should not intervene .to stop election in the mid way. In the case of Election Commission Vrs. Ashok Kumar and others, AIR 2000 SC 279, a detailed consideration has been made with regard to the power exercised by the Court. In paragraph-32 of the said report, the general principles have been summarized in the following manner.- 32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove; (1) If an election. In paragraph-32 of the said report, the general principles have been summarized in the following manner.- 32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove; (1) If an election. (the terms election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting. obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to calling in question an election- if it sub-serves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329 (b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting. protracting or stalling of the election proceedings. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329 (b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting. protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilize the Court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the every nature of the things the Court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.” 12.In view of the statutory bar contained in Section 28-B of the Orissa Cooperative Societies Act and authoritative pronouncement of the apex Court in the decisions cited supra, the conclusion is irresistible that when the election process has been set into motion, the High Court in exercise of its jurisdiction under Article 226 of the Constitution should not interfere with the process of election. 13.As the election process has been set in motion, this Court is not inclined to entertain the writ application. Accordingly, the same is dismissed. Application dismissed.