Orissa High Court
Dillip Kumar Nayak & Another vs State Of Odisha & Others on 8 January, 2021
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C ) No.29742 of 2020
In the matter of application under Articles 226 & 227 of the Constitution
of India.
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Dillip Kumar Nayak & another ............ Petitioners
-versus-
State of Odisha & others ........... Opp. Parties
For Petitioners : M/s. D.D.Nayak, Sr.Advocate
Akash Bhuyan, N.K. Mohanty
For Opp. Parties : M/s. H.M. Dhal
Additional Government Advocate
: M/s. P.K. Rath, A. Behera,
S.K. Behera, P.Nayak,
S.Das and S.Rath
(for Opposite Party No.6)
P R E S E N T:
THE HON'BLE MR. JUSTICE BISWAJIT MOHANTY
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Date of Judgment : 08.01.2021
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Biswajit Mohanty, J. The petitioners have filed the present writ petition
questioning the order of Additional District Magistrate, Bhadrak (opposite
party no.3) giving various directions for holding election to various posts
of office bearers of opposite party no.6 and consequential order of the
Sub-Collector, Bhadrak (opposite party no.4) on the same subject under
Annexure-5 on the ground that the above noted orders/directions have
been issued without jurisdiction and by ignoring the relevant provisions of
the bye-law of opposite party no.6 governing the field. Their further case
is that holding of election prior to outcome of audit of financial status of
opposite party no.6 should not be permitted.
2. Mr. Dharanidhar Nayak, learned Senior Advocate submitted that
the amended bye-law of Bhadrak Bus Syndicate under Annexure-2 lays
down detailed guidelines relating to election of office bearers of opposite
party no.6. In this connection, he relied on Clause-10 (Kha) of the bye-
laws, which makes it clear that in a general body meeting if more than
half of the permanent members desire that the election be held to elect
the office bearers of the association only then, an election can be held.
Further for the purpose of conduct of such election, three persons are
required to be nominated by the majority in a general body meeting, who
will act as a Committee for conducting the election. Such committee is
mandated to complete the process of election within one month. Further,
it makes it clear that the election should be conducted by following the
procedure of secret ballot. In such background, he submitted that in the
process of conduct of election as contained in amended bye-law under
Annexure-2, which has been duly approved by the Addl. District
Magistrate-cum-Registering Authority, no role has been assigned to the
A.D.M., Bhadrak (opposite party no.3) or Sub-Collector, Bhadrak
(opposite party no.4). He also submitted that none of these officers has
been authorized either under the bye-law of opposite party no.6 or under
the Societies Registration Act, 1860 to play any role in the matter of
conduct of election to the office bearers of a society like opposite party
no.6. Therefore, he submitted that the slew of directions issued by the
Addl. District Magistrate, Bhadrak (opposite party no.3) under
Annexure-4 with regard to holding of election to various posts of office
bearers of opposite party no.6 and consequential orders in the same
matter under Annexure-5 by opposite party no.4 are all without
jurisdiction and are liable to be quashed. Further according to him,
election should be held after the process of audit is complete.
3. Mr. Dhal, learned Addl. Government Advocate submitted that the
Bhadrak Bus Syndicate suffers from intense group rivalries and both the
parties had approached the Collector and District Magistrate, Bhadrak
(opposite party no.2) and Additional District Magistrate, Bhadrak
(opposite party no.3) requesting them to ensure financial discipline in
opposite party no.6 and to help them in holding free and fair election as
the tenure of earlier body expired on 31.3.2020. Accordingly, on
11.6.2020 an interim committee was constituted which included the
petitioner no.1 to manage the day to day affairs of opposite party no.6.
Further, on 1.7.2020 vide Annexure-E/4, the Collector and District
Magistrate, Bhadrak was requested by Commerce and Transport
Department of Government to facilitate holding of a free and fair election
of office bearers of the association under the supervision of a Senior
Officer of the district administration by 31.7.2020. Copy of the same was
also forwarded to the Superintendent of Police, Bhadrak with a request to
take suitable actions against the unsocial elements, who were putting
hindrances in holding the election. He, however, submitted that as per the
said direction, election could not be held by 31.7.2020 on account of
spread of COVID-19 pandemic. Sometime after, W.P.(C) No.23628 of 2020
was filed by certain persons with a prayer to direct the Addl. District
Magistrate, Bhadrak to hold election to the posts of office bearers of
opposite party no.6. The said writ petition was disposed of on 15.9.2020
with a direction to the Addl. District Magistrate, Bhadrak to consider and
dispose of the representation of the petitioners therein by passing a
reasoned order in accordance with law within a period of four weeks from
the date of production of an authenticated copy of that order, if the same
was still pending. In such background, directions were issued under
Annexure-4 by the Addl. District Magistrate, Bhadrak (opposite party
no.3) with regard to holding of elections. Accordingly, vide Annexure-5,
the Sub-Collector, Bhadrak (opposite party no.4) also prepared the
schedule for the election and issued other ancillary directions pertaining
to the election. Therefore, in the facts and circumstances, Mr. Dhal
contended that the directions contained in Annexures-4 & 5 with regard
to holding of election cannot be faulted. He also submitted that there
exists no prayer for quashing the directions relating to holding of election
as contained under Annexure-4. Accordingly, he prayed for dismissal of
the writ petition.
4. Mr. Rath, learned counsel appearing for opposite party no.6
submitted that the election should take place as quickly as possible as
per law.
5. Heard Mr. Dharanidhar Nayak, learned Senior Advocate for the
petitioners, Mr. Dhal, learned Addl. Government Advocate and Mr. Rath,
learned counsel representing opposite party no.6.
6. The dispute in the present case mainly revolves around the
question of jurisdiction of opposite party nos.3 & 4 in giving detailed
directions with regard to holding of election to different posts of office
bearers of Bhadrak Bus Syndicate. A perusal of the order under
Annexure-4 issued by the Addl. District Magistrate, Bhadrak (opposite
party no.3) inter alia shows that he directed for holding of election to
various posts of office bearers within four weeks. The Sub-Divisional
Magistrate-cum-Sub-Collector was directed to act as observer for smooth
conduct of election. The Deputy Collector, Emergency was nominated as
Election Officer, who was required to conduct the election under the
guidance of Sub-Divisional Magistrate-cum-Sub-Collector. Further, the
opposite party no.3 directed that a detail procedure and schedule in
consultation with Sub-Divisional Magistrate-cum-Sub-Collector be laid
down so as to complete the election within the stipulated time. The
interim committee members constituted in the meeting on 11.6.2020 were
directed to assist the Election Officer for smooth and successful
completion of the election and expenditure so incurred for conducting the
election should be met from the account of Bhadrak Bus Syndicate
(opposite party no.6). Though in the prayer portion, the petitioners have
not prayed for quashing of the above noted directions of the Addl. District
Magistrate, Bhadrak (opposite party no.3), however, a perusal of Paras-1,
10, 14, 15 and 20 of the writ petition clearly indicate that the petitioners
are also questioning the order of Addl. District Magistrate, Bhadrak
(opposite party no.3) with regard to his directions for conduct of election
obviously under Annexure-4. Further, it is well settled that this Court has
the power to modulate the reliefs considering the nature of lis pending
before it. It may also be noted here that the petitioners have also invited
this Court in their prayer to issue any other writ/writs as would be
deemed fit and proper in the facts and circumstances of this case. In such
background, this Court is of the opinion that it can examine whether the
above noted directions of the Addl. District Magistrate, Bhadrak as
contained under Annexure-4 with regard to holding of election of a
registered society like opposite party no.6 were issued validly. To a query
put by this Court, Mr. Dhal could not bring to the notice of this Court any
legal provisions, which authorize the Addl. District Magistrate, Bhadrak
(opposite party no.3) to issue the above noted directions for conducting
election. It may be seen that the matter relating to conduct of election is
clearly covered by Clause-10 (Kha) of the approved amended bye-law of
opposite party no.6 under Annexure-2. A perusal of the same makes it
clear that it is the general body in its meeting can decide to go for election
and for conducting the same, majority of the members present in the
general body have to nominate a Committee for conducting election
consisting of three members and this committee is required to conduct
the election to the various posts within one month. Therefore, the election
to various posts of office bearers of opposite party no.6 has to be held in
tune with the procedure prescribed by the approved bye-law and the said
bye-law does not envisage any role to be played either by opposite party
no.3 or by opposite party no.4 in the matter of conduct of such election.
In this context, it may be noted here that it is well settled that when a
particular procedure has been prescribed for doing a particular thing, the
same has to be done as per that procedure and not in any other manner.
In such background, this Court has no hesitation in coming to a
conclusion that all the directions issued by the opposite party no.3 under
Annexure-4 on conduct of election and the consequential directions
issued by the Sub-Collector, Bhadrak (opposite party no.4) under
Annexure-5 on the same issue are clearly illegal. These have been issued
without any authority of law. It may be noted here that even in the order
under Annexure-E/4, which could not be implemented, the Collector and
District Magistrate, Bhadrak (opposite party no.2) was never requested to
facilitate free and fair election of office bearers of the association by
ignoring the approved bye-law under Annexure-2. It may also be noted
here that though in W.P.(C) No.23628 of 2020, a prayer was made to
direct the Addl. District Magistrate, Bhadrak to hold election, however,
this Court without expressing any opinion on the merits, only directed the
Addl. District Magistrate, Bhadrak to consider and dispose of the
representation of the petitioners therein by passing a reasoned order "in
accordance with law". In the present case, by issuing a slew of directions
under Annexure-4 with regard to holding of election to the various posts
of office bearers of Bhadrak Bus Syndicate, while disposing of the
representation, it cannot be said that the opposite party no.3 acted in
accordance with law as he has no jurisdiction to issue such directions. In
such background, directions with regard to holding of election by the
Addl. District Magistrate, Bhadrak under Annexure-4 and the
consequential directions on the same issue by the Sub-Collector, Bhadrak
(opposite party no.4) under Annexure-5 are held to be of no legal
consequence and are hereby set aside.
7. With regard to the prayer for holding of election after
completion of the audit is concerned, no legal provision has been brought
to the notice of this Court in support of such prayer. Accordingly, this
Court is not inclined to accept such prayer of the petitioners.
8. Before saying omega, it is made clear that election, if any, to
various posts of office bearers of Bhadrak Bus Syndicate can only be held
following the procedure laid down in the amended bye-law under
Annexure-2 and in the event, such an election is held, the Collector and
District Magistrate, Bhadrak (opposite party no.2) is directed to see to it
that the law and order is strictly maintained during the course of such
election.
9. With such observations and directions, the writ petition is
disposed of.
Records of W.P.(C) No.2362 of 2020 be de-linked from this file.
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BISWAJIT MOHANTY, J.
Orissa High Court, Cuttack
The 8th January, 2021/RNS
