In the matter of the application under Articles 226 and 227 of the Constitution v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.3906 of 2025 In the matter of the application under Articles 226 and 227 of the Constitution of India. Daluram Dehury and others … Petitioners - Versus - State of Odisha and others … Opposite Parties For Petitioner … M/s. Debakanta Mohanty T.K. Nayak, A.K. Das. For Opposite Parties … Mr. Pitambar Acharya, Advocate General (For O.P. Nos.1 & 2) PRESENT: THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA Date of hearing and judgment : 18.02.2025 A.K. Mohapatra, J. The Petitioners, who are the members of Gandhamardhan Loading Agency and Transporting Cooperative Society Ltd. (registered as a Cooperative Society under the Cooperative Societies Act), have approached this Court by filing the present writ petition with a prayer to quash the final electoral roll of the aforesaid Society on the ground that the same has been Page 1 of 21. prepared in violation of the provisions contained in the Cooperative Societies Act as well as the Rules framed thereunder. The Petitioners have also prayed for a direction to the Opposite Parties to prepare a revised final electoral roll considering the points/grievances raised by the Petitioners in the writ petition and till such time the election of the managing committee members of the aforesaid Cooperative Society be not conducted. 2.
Legal Reasoning
The factual background of the Petitioners’ case, in a narrow compass, is that Gandhamardhan Loading Agency and Transporting Cooperative Society Ltd. (hereinafter referred to as ‘the Society’) is a registered Cooperative Society bearing Registration No.89/BJR/28.12.2006. The Society is governed by its own bye-law and the Petitioners are the members of the Society. A copy of the bye-law of the Society has been annexed to the writ petition as Annexure-2. Clause-5 of the Bye-Law specifically deals with admission of members. There are three categories of members who can be admitted in the Society. Class-A members of the Society are those who hold more than 50 shares with voting right. Class-B membership shall be allotted to the State Government/Central Government employees working in the area. Page 2 of 21. Class-C members shall consist of the share holders, who are nominal members and shall not have any voting right. 3. The pleadings in the writ petition further reveals that the Society is managed by an elected managing committee. The dispute arose when the Deputy Registrar, Cooperative Societies, Keonjhar Division vide his letter dated 23.07.2024 dissolved the elected committee of management and appointed the official
Legal Reasoning
Administrator, namely, Sri Susil Chandra Naik (SARCS). Accordingly, the management of the Society has been taken over by the above named Administrator till constitution of a newly elected managing committee. For constitution of the newly elected managing committee, the above named Administrator was required to prepare the list of eligible members which would constitute the electoral roll for conducting the election of the new committee members. 4. Mr. D.K. Mohanty, learned counsel appearing for the Petitioners, at the outset, contended that the main grievance of the Petitioners in the present writ petition is with regard to the preparation of the electoral roll consisting of valid members having voting right. He further contended that it was the duty of the Page 3 of 21. Administrator to prepare the list of eligible members who can cast their votes once the election process is notified. By the time the Administrator took over the charge of the Society, there were altogether 105 nos. of Class-A members and 2453 nos. of Class-C members. He further alleged that the Administrator, after taking over the charge, convened an Annual General Body meeting and, accordingly, new members were admitted to the Society. As a result of which, the number of Class-C members, which was 2453, increased to 3317. He further alleged that the Administrator, Opposite Party No.3, inducted 211 numbers of Class-A members from out of 864 numbers of Class-C members inducted by the Administrator. As a result, the number of Class-A members with voting rights increased to 316. 5. Mr. Mohanty further alleged that although applications were made by some of the old C class members before the Administrator, Opposite Party No.3 and the ARCS, Keonjhar requesting them to admit such Class-C members as Class-A members and to confer them with voting rights, however, such request was not considered by the Opposite Party No.3. On the contrary, some new Class-C members who were inducted by the Page 4 of 21. Administrator were later on converted to Class-A members by virtue of the decision taken in AGB meeting after the Opposite Party No.3 took over charge as Administrator. Therefore, a total of 208 nos. of such new Class-C members were converted to Class-A member. Being aggrieved by such conduct of the Administrator, Opposite Party No.3, in inducting new Class-C members after he took over charge and thereafter converting their membership to Class-A and conferring such members with the voting right and at the same time ignoring the claims of the old Class-C members for conversion of their membership to Class-A and conferment of their voting right, the Petitioners, most of whom are such old Class-C members of the Society, have approached this Court by invoking the writ jurisdiction of this Court under Article 226 ad 227 of the Constitution of India. 6. Learned counsel for the Petitioners further contended that the Administrator, Opposite Party No.3, without considering the request of the present Petitioners under Annexure-4 Series, published a provisional electoral roll was on 18.01.2025 indicating therein a list of 316 nos. of Class-A members. He further strenuously argued that induction of 208 nos. of new Class-A Page 5 of 21. members over and above the 105 old Class-A members by the Administrator is absolutely illegal and arbitrarily. He further contended that while inducting Class-C members and later on converting them to Class-A members with voting right, the provisions of Cooperative Societies Act as well as the Rules framed thereunder have been infringed. 7. Learned counsel for the Petitioners, further drawing attention of this Court to the Odisha Cooperative Societies (Elections to the Committee) Rules, 1992, contended that the said rule has been framed in exercise of the power conferred under Section 134 read with Section 28-A of the Cooperative Societies Act. Further, referring to Rule-6, learned counsel for the Petitioner submitted that the said rule lays down the detailed procedure with regard to the preparation of electoral roll. He further contended that after publication of the provisional electoral roll an objection is required to be invited under Section 6(5) of the aforesaid rules and such objection shall be filed before the Election Officer. Moreover, Rule-6(5) provides that after the objections are filed before the Election Officer, the same shall be heard and decided by the Election Officer after such inquiry as he may consider necessary. Page 6 of 21. The relevant provision of Rule-6 which is the main plank of argument of the learned counsel for the Petitioner is quoted herein below:- “6(5) Objections to the provisional electoral rolls published under Sub-rule (4) shall be filled before the Election Officer in writing showing therein the details of the objections, and full particulars of the objectors within four days from the date of publication of the said electoral rolls, and the same shall be heard and decided by the Election Officer after such enquiry as he may deem necessary. The Election Officer shall correct the electoral roll after deciding all claims and objections and finalise the same within three days from the last date of receipt of objections.” 8. Thus, on a careful analysis of the submission made by the learned counsel for the Petitioners, this Court observed that the challenge to the final electoral roll by the Petitioners is based on two planks. (i) induction of new Class-C members by the Administrator, Opposite Party No.3, and thereafter conversion of such new Class-C members to Class-A members with the conferment of voting right on such members, which according to the learned counsel for the Petitioners, is beyond the competence and authority of the Administrator; (ii) Although objections under Rule-6(5) were filed before the Election Officer under Annexure-4
Decision
to the writ petition, however, without deciding the same in terms of sub-rule(5) of Rule-6, the final electoral roll was published Page 7 of 21. abruptly. Therefore, the final electoral roll published by the Opposite Party No.3 is illegal and the same is in violation of the provisions of 1992 Rules as well as the Act. On the aforesaid two major planks, learned counsel appearing for the Petitioners urged before this Court that the entire election process is vitiated as the same is based on an illegal and void electoral roll. On such ground, learned counsel for the Petitioners submitted that the final electoral roll under Annexure-7 is liable to be quashed with a further direction to the Opposite Parties to conduct the election afresh after preparation of a valid final electoral roll in terms of the 1992 Rules. 9. Per contra, Mr. Pitambar Acharya, learned Advocate General, representing the State-Opposite Parties contended that the Opposite Party No.3-Administrator has not committed any illegality in notifying the election and going ahead with it. He further submitted that after dissolution of the committee of management vide letter dated 23.07.2024, the Opposite Party No.3 was appointed as an Administrator. Furthermore, after taking over the charge as an Administrator, the Opposite Party No.3 took immediate steps to conduct the election and to ensure that the new committee members are elected and that the Society runs in a Page 8 of 21. democratic manner with the election of new committee members as well as officer bearers. With regard to the induction of new members by convening an Annual General Body meeting by the Opposite Party No.3-Administrator, Mr. Acharya contended that while inducting such members, the Opposite Party No.3 has not committed any illegality, rather he has acted in conformity with the settled legal position and the applicable Rules. Therefore, the allegation made by the Petitioners with regard to infringement of the provisions of the rule as well as act is absolutely baseless and vague and such allegations remain unsubstantiated. 10. In course of the argument, Mr. Acharya, learned Advocate General, strenuously canvassed an issue with regard to the maintainability of the present writ petition. It was emphatically and strenuously argued by Mr. Acharya that in view of the bar contained in the Odisha Cooperative Societies Act, 1962, the present writ petition is not maintainable. To substantiate his objection with regard to the maintainability of the writ petition, Mr. Acharya referred to the final election schedule notification dated 18.01.2025 and contended that since the election has been notified, there is a bar in law to interfere with the election process. In the Page 9 of 21. said context, he also referred to the provisions contained in Section 28-B of the O.C.S. Act. For better understanding, the provision contained in Section 28-B of the O.C.S. Act has been extracted herein below:- “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 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.” 11. The aforesaid Section 28-B was inserted in the statute book by virtue of Orissa Act No.28 of 1991 w.e.f. 11.09.1992. Further, referring to the aforesaid provision, Mr. Acharya contended that once the election process is notified, the same shall not be held up under any circumstances and that the dispute with regard to the election of the President or the members of the committee shall not be called in question before any authority under this Act until declaration of the result of such election. In the light of the aforesaid provision, it was argued by Mr. Acharya that this Court should not interfere in the present writ application in view of the provision contained in Section 28-B of the O.C.S. Act, 1962. Page 10 of 21. 12. In support of his contention with regard to the bar on the interference of this Court with any election dispute while the election process is on, Mr. Acharya referred to the judgment of the constitution Bench of the Hon’ble Supreme Court in N.P. Ponnuswami v. Returning Officer, reported in (1952) 1 SCC 94; as well as in the case of Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Ors., reported in (1978) 1 SCC 405. By referring to the aforesaid two judgments of the constitution Bench of the Hon’ble Supreme Court, Mr. Acharya contended that the law with regard to election and the scope of interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India has been crystallized by the Hon’ble Supreme Court in a catena of judgments including the above noted two constitution Bench judgments. The said constitution Bench judgments have clearly put an embargo on the exercise of the jurisdiction by this Court under Article 226 of the Constitution of India while the election process is on. 13. Mr. Acharya further contended that a mechanism has been provided to decide the disputes involving or arising out of the election. So far the Odisha Co-operative Societies Act is Page 11 of 21. concerned, he submitted that a specific provision in the shape of Section 67-B has been enacted in the statute book. Section 67-B of the O.C.S. Act 1962 specifically provides that any dispute arising in connection with the election of any office bearer of a Society shall be referred to the Tribunal. Therefore, the Cooperative Tribunal constituted under Section 67-A of the O.C.S. Act 1962 is the competent forum to decide any election dispute of the Cooperative Society. In such view of the matter, it was contended that the present writ petition is not maintainable in view of the bar contained in the statute and on the face of an alternative mechanism provided in the statute for adjudication of the dispute relating to the election involving Cooperative Societies. Hence, it was urged that the writ petition is not maintainable and, accordingly, the same should be dismissed. 14. Heard Mr. D.K. Mohanty, learned counsel for the Petitioner and Mr. PitambarAcharya, learned Advocate General appearing for the State-Opposite Parties. Perused the writ petition as well as the documents filed along with the writ petition and place before this Court in course of hearing. Page 12 of 21. 15. On a careful analysis of the submissions made by the learned counsels appearing for the respective parties, further taking note of the preliminary objection raised by the learned Advocate General with regard to maintainability of the present writ petition, this Court is of the considered view that the issue with regard to the maintainability of the present writ petition requires adjudication before entering into the merits of the dispute involved in the preset writ application. While objecting to the maintainability of the writ petition, Mr. Acharya referred to the provisions contained in Section 28-B of the O.C.S. Act, 1962 as well as the provisions contained in Section 67-B of the said Act. On a careful analysis of both the provisions, this Court observed that Section 28-B imposes a bar in an unambiguous manner with regard to the interference of this Court in the election process once such process has commenced and until the declaration of the result of such election. On an examination of the provision contained in Section 28-B, it is observed that the said provision provides that the election shall not be held up and no matter relating to the election shall be called in question before any authority under this Act. Therefore, the question that arises for determination is as to whether this Court Page 13 of 21. can be construed to be an authority as has been mentioned in Section 28-B of the O.C.S. Act, 1962? 16. While answering the aforesaid question, this Court would like to refer to the judgment of Division Bench of this Court in Sri SulabhCharanSamal and Ors. V. State of Orissa and Ors., reported in (2008) 106 CLT 153. In the said reported judgment, a Division Bench of this Court was required to decide an identical question similar to the one involved in the present writ petition, i.e. the validity of the voter list for election to the Committee of Management of Cuttack Central Co-operative Bank under the O.C.S. Act, 1962. In the said writ petition, a preliminary objection was raised with regard to the maintainability of the writ petition. Before the Division Bench, the admitted facts were that the election to the committee of management of the Bank had already been held as scheduled, however, the result of such election had not been declared because of the interim order passed by the Court. The Hon’ble Division Bench by referring to Section 28-B of the Act had come to a conclusion that the said provision goes to show the intention of the legislature to prevent interference in the election Page 14 of 21. process of a society once scheduled, until the declaration of the result of such election. 17. In the aforesaid judgment, it has also been held by the Division Bench that a combined reading of the provisions of Section 28-B as well as 67-B of the O.C.S. Act implies that the Tribunal exercising jurisdiction with regard to any dispute cannot interfere with the election process until declaration of the result of such election. Eventually, the writ petition was dismissed by the Division Bench by holding that infringement of any statutory right conferred under the statute can only be assailed only in the designated forum and not by way of a writ petition before this Court and, as such, it was categorically held that the writ petition under Article 226 and 227 of the Constitution of India would not lie and, accordingly, the writ petition was not entertained although liberty was granted to the Petitioners to approach the Cooperative Tribunal under Section 67-B of the Act. 18. It would also be noteworthy to refer to a judgment of the Hon’ble Supreme Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another v. State of Maharashtra and Others, reported in (2001) 8 Page 15 of 21. SCC 509. The question that fell for consideration before the Hon’ble Supreme Court in the aforesaid case is somewhat similar to the question that this Court is attempting to answer in the present writ petition. The specific question that was being considered by the Hon’ble Supreme Court in the aforesaid case is whether the High Court should interfere with the preparation of an electoral roll in a petition under Article 226 of the Constitution of India or to decline to interfere in the matter leaving the parties to get the matter adjudicated by the Tribunal by filing an election petition after declaration of result of the election. 19. While answering the aforesaid question, the Hon’ble Supreme Court referred to the relevant provisions of the Maharashtra Cooperative Societies Act, 1960 and it has been categorically held that preparation of voters list is a part of the election process and that the preparation of list inviting objection and preparation of the voter list are all part of the rules meant for conducting the election. Finally, it was held that the preparation of the electoral roll being an intermediary stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the Page 16 of 21. High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. Further, it has been held that once the election result has been declared, it would be open to the aggrieved parties to challenge the election of the return candidates by means of an election petition before the Election Tribunal. In such view of the matter, there is absolutely no doubt that any infringement of procedure or the rules can very well be challenged by raising an election dispute under Section 67-B of O.C.S. Act that too after publication of final result. 20. Reverting back to the facts of the present case, it is not disputed by either side that the election was notified vide Notification dated 18.01.2025. Moreover, Rule-5 of the 1992 Rules provides for notice for various stages of the election. The said rule clearly indicates that preparation of provisional electoral roll, objection, final electoral roll etc. are all part of the electoral process. It is also an admitted fact that the Petitioner being aggrieved by the preparation of the final electoral roll has approached this Court by filing the present writ petition. Taking into consideration the prayer of the Petitioners as well as the Page 17 of 21. Notification, this Court has no hesitation to hold that the election process has been set in motion. Therefore, the provision contained in Section 28-B would apply to the facts of the present case. Further, taking into consideration the judgment of this Court as well as the Hon’ble Supreme Court discussed hereinabove, this Court is of the view that there exists an embargo with regard to exercise of the jurisdiction of this Court which would eventually result in tinkering with the election process. 21. The next question that falls for consideration is as to whether the Petitioner would be rendered remediless in the event this Court refuses to exercise the writ jurisdiction under Article 226 of the Constitution of India? In reply to the said question, this Court would first like to refer to the relevant provision in the 1992 Rules, particularly Rule-57 which provides the manner in which the election disputes can be raised and decided. For the sake of convenience, the said provision has been quoted herein below:- “57. Election disputes – Subject to the provision of Section 28-B, disputes regarding any matter relating to election of the President of Members of the Committee of a society may be raised before any authority competent in that regard under the Act and in that case the provisions of the rules under Chapter VII of the Orissa Co-operative Societies Rules, 1965 shall mutatis mutandis apply in respect of such disputes.” Page 18 of 21. 22. Thus, Rule-57 of the O.C.S. Rule, 1962 clearly provides that the same is subject to Section 28-B of the O.C.S. Act and that the election dispute with regard to the election of President or the members of the committee may be raised before any authority competent in that regard. In the present case, the competent authority as has been provided under Section 67-B of the O.C.S. Act, 1962 is the Tribunal constituted under Section 67-A. Therefore, this Court is also of the considered view that an alternative remedy in the shape of election dispute has been provided in the Act as well as in the Rule, i.e. by filing an election dispute before the Cooperative Tribunal under Section 67-B of the O.C.S. Act, 1962. Therefore, on the face of such alternative remedy being available to the Petitioners, this Court should refrain from exercising its discretionary power under Article 226 and 227 of the Constitution of India leaving the entire issue to be adjudicated by the competent forum, i.e. the Cooperative Tribunal to determine the entire election dispute in terms of the O.C.S. Act, 1962 as well the Rules framed thereunder. 23. This Court would also like to mention here that an identical writ application was filed before this Court involving the very same Page 19 of 21. dispute in W.P.(C) No.4632 of 2025 and vide order dated 17.02.2025, this Court while taking note of the provisions contained in the O.C.S. Act, 1962 declined to entertain the writ application. 24. In the ultimate analysis of the factual as well as the legal position, this Court is of the considered view that the right to participate in the election being a statutory right, the same is to be governed by the provisions contained in the very statute and the rules framed thereunder which has conferred such right on the individuals. Such statute, having created an embargo with regard to interference with the election process by keeping in view larger public interest and further an alternative mechanism having been provided to decide the election disputes after conclusion of the election and declaration of the final result, it would not be fair, proper and legal to interfere with the election process at this intermediate stage in exercise of the writ jurisdiction under Article 226 and 227 of the Constitution of India. Thus, while holding that the present writ petition is not maintainable, this Court deems it proper to dispose of the writ petition by granting liberty to the Petitioners to approach the Tribunal, in the manner as has been Page 20 of 21. provided in the O.C.S. Act, 1962 and the rules framed thereunder, after declaration of the final result. This Court believes that once such a dispute is raised, the Tribunal shall do well to adjudicate such disputes in accordance with law without being influenced by any of the observations made hereinabove. 25. Accordingly, the writ petition is dismissed with the observations made hereinabove. (Aditya Kumar Mohapatra) Judge Orissa High Court, Cuttack The 18th February, 2025/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 21-Feb-2025 19:35:26 Page 21 of 21.