Orissa High Court
Bhabani Prasad Majhi vs State Of Odisha & Others on 1 November, 2021
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.32134 of 2020
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
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Bhabani Prasad Majhi ....... Petitioner
-Versus-
State of Odisha & others ....... Opp. Parties
For Petitioner : M/s. P.K. Rath, A. Behera,
S.K. Behera, P. Nayak,
S. Das & S. Rath
For Opp. Party Nos.1 to 3: Mr. S.K. Samal,
Addl. Govt. Advocate
For Opp. Party No.4: - Mr. H.M. Dhal, Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY
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Date of Hearing: 08.10.2021 Date of Judgment: 01.11.2021
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B. Mohanty, J. This writ petition has been filed by the petitioner
with prayer to quash order No.9253 dated 01.05.2020 under
Annexure-3 issued by the Registrar, Cooperative Societies,
Odisha (opposite party No.2) appointing opposite partyNo.3 to
manage the affairs of Sundargarh District Central Co-operative
// 2 //
Bank Ltd. for short, "the Bank" and with a further prayer to
direct opposite party Nos.1 to 4 to complete the process of
election in respect of Committee of "the Bank" and Primary
Agricultural Co-operative Societies affiliated to it in the district
of Sundargarh within a stipulate time.
2. The case of the petitioner is that, he is an Ex-President
of "the Bank" and a member of Large-sized Adivasi Multipurpose
Co-operative Societies (LAMPCS) at Karamadihi in the district of
Sundargarh. The petitioner in the capacity of member of the
above noted LAMPCS was elected to the Committee of "the
Bank". The tenure of Committee of which the petitioner was the
President came to an end on 30.04.2020. Instead of holding
election to constitute the new Committee, the Registrar,
Cooperative Societies, Odisha passed the impugned order dated
01.05.2020 under Annexure-3 appointing the Collector &
District Magistrate, Sundargarh as Administrator of "the Bank"
to manage the affairs of the said bank in exercise of powers
under Sub-Section (1) of Section 32 of Odisha Cooperative
Societies Act, 1962, for short, "the Act". It is the case of the
petitioner that in the background of the language used in
Section 32 of "the Act", the Collector of the district cannot
remain in charge of the management. His further case is that
// 3 //
since the impugned order under Annexure-3 is legally
unsustainable, the authorities should immediately hold
elections to the Committee. Accordingly, the present writ
petition has been filed with the above noted prayers.
3. The opposite party Nos.1 & 2 have filed their counter
affidavit on 08.01.2021 taking stand that the impugned order
has been passed properly taking into account the Explanation
appended to Sub-Section-1 of Section 32 of "the Act" and
accordingly, the management consequent upon supersession
stood vested with the Registrar, who in turn has appointed the
Collector of the district as Administrator in consonance with the
provisions of "the Act" and the same cannot be faulted. The case
of opposite party No.1 in its affidavit dated 09.08.2021 is that,
vide notification dated 01.08.2017 under Annexure-B/1, the
Government of Odisha in Cooperation Department in exercise of
the powers conferred by Sub-Section (1) of Section 3 of "the Act"
read with Rule-5 of the Odisha Cooperative Societies Rules,
1965, for short "the Rules" have appointed the Collectors of all
the revenue district of the State as Additional Registrars of Co-
operative Societies to assist the Registrar of Co-operative
Societies, Odisha and as per Section 2(i) of "the Act", the
Registrar has been defined to mean the person appointed to
// 4 //
perform the functions of the Registrar of Co-operative Societies
under this Act, and includes any person appointed to assist the
Registrar when exercising all or any of the powers of the
Registrar. Further, it is the case of the State that all the
Additional Registrars have been conferred with powers of
Registrar under Sections 6, 7, 8, 10(2), 12, 14, 14-A, 16(2-a) 17,
28, 30, 30A, 32, 33, 35(3), 59(1), 63, 64, 65, 66, 68, 70, 72, 73,
75, 76, 77, 90, 102 to 105, 106 (1)(b), 108, 114, 116(3), 120,
123-A(2), 128(3) of "the Act" by the State Government in the Co-
operation Department in exercise of powers under Sub-
Section(2) of Section 3 of "the Act" vide Order No.II-Legal-26/98-
19992 dated 21.09.1999. Accordingly, for all practical purposes
as the Collector has been appointed as Additional Registrar to
assist the Registrar of Co-operative Societies and since the
Additional Registrar exercises several powers of Registrar,
Collector can clearly be treated to be a Registrar as per Section
2(i) of "the Act". Thus, no wrong has been committed by
appointing the Collector as Administrator under Annexure-3 to
manage the affairs of "the Bank" as he is functioning as a
Registrar.
With regard to the prayer of the petitioner for
conducting election by quashing the impugned order under
// 5 //
Annexure-3, it is the case of opposite party Nos.1 & 2 that due
to spread of Covid-19 Pandemic, it has not been possible to
conduct elections. Though lockdown has been lifted in the mean
time and though there is decline in trend of infection however,
the fear of Covid-19 still persists. This stand was taken by
opposite party No.1 in their counter affidavit dated 08.01.2021.
However, therein, it was made clear that the State Government
is committed to formation of democratically elected Committees
of the Co-operative Societies and accordingly, the State is
committed to hold election no sooner the situation returns to
normalcy. Further in their affidavit dated 09.08.2021 filed before
this Court on 10.08.2021, the opposite party No.1 has made it
clear that as per Section 28-AA of "the Act", the
superintendence, direction and control of the preparation of
electoral rolls and the conduct of all elections to a Co-operative
Society vest in the State Co-operative Election Commission and
as per Rule-3 (1-a) of the Odisha Co-operative Societies
(Elections to the Committees) Rules, 1992, for short "1992
Rules" the State Co-operative Election Commission has to
recommend the date to the Government for issuance of
notification calling upon the Co-operative Societies to elect
members of the committee of the society and on receipt of such
// 6 //
recommendation, the Government is only to notify the same in
the Odisha Gazette and on 24.04.2020, the State Co-operative
Election Commission (opposite party No.4) has intimated the
Commissioner-cum-Secretary, Co-operation Department that
due to pandemic situation in the State, the Commissioner is not
in a position to suggest the tentative date for holding of election.
Further in the affidavit dated 07.09.2021 filed by the opposite
party No.l, it reiterated that opposite party No.4 has to
recommend the date to the Government for issuance of
notification calling upon the Co-operative Societies to elect
members and the Government is only to issue notification
indicating the said date for election and Government has no
power to suggest any date or to suggest for holding of election
under the provisions of "the Act" and the Rules framed there
under.
4. The stand of opposite party No.4 as per the counter
affidavit dated 07.04.2021 is that the tenure of the Committee of
"the Bank" came to an end on 30.04.2020. By that time, the
entire State was under lockdown due to spread of Covid-19
Pandemic for which the Commission vide letter dated
01.07.2020 under Annexure-A/4 addressed to the opposite
party No.1 sought for its views in the matter of holding of
// 7 //
election and the response of the State Government is still
awaited. It is their further case that, in the meantime, the
opposite party No.4 has written to the Registrar, Co-operative
Societies on 02.11.2020 under Annexure-B/4 requiring him to
supply the requisite consolidated information in the enclosed
prescribed format for assessment for the upcoming co-operative
election. That apart vide letter dated 04.01.2021 under
Annexure-C/4 series, the opposite party No.4 has written to all
the Divisional DRCSs requesting them to instruct the Chief
Executive of the Societies under their control to take immediate
steps for preparation of list of members of the Societies. Further
on 25.02.2021 under Annexure-D/4, the opposite party No.4
had written to all the DRCSs for supply of information on
deployment of election officers during cooperative election 2015-
16 for assessment of man power for the forthcoming election in
the State.
5. Heard Mr. P.K. Rath, learned counsel for the petitioner,
Mr. S.K. Samal, learned Additional Government Advocate and
Mr. H.M. Dhal, learned counsel appearing for opposite party
No.4.
6. Mr. Rath, learned counsel for the petitioner submitted
that the impugned order under Annexure-3 appointing the
// 8 //
Collector, Sundargarh as Administrator is bad in law because
the pre-requisites for exercising power under Sub-Section (1) of
Section 32 of "the Act" dealing with supersession of Committee
did not exist in the present case. According to him, the four
circumstances given at Clauses (i) (ii) (iii) & (iv) under Sub-
Section 1 to Section 32 of "the Act" were non-existent in the
present case. Secondly, even if help is taken of the Explanation
to Sub-Section (1) of Section 32 to justify the impugned order,
then also an illegality has been committed by appointing the
Collector as Administrator as there exists no concept of
Administrator in the Explanation. It speaks of vesting of
Management only in Registrar. Thirdly, he submitted that even if
appointment of District Collector as Administrator is accepted,
then also his engagement cannot go beyond one year. In this
context, he submitted that as per the language of Sub-Section
(1) of Section 32 of "the Act", Committee of a Society carrying on
the business of banking cannot be superseded for a period
exceeding one year. Accordingly, he submitted that since one
year period expired on 30.04.2021, therefore, the authorities are
duty bound to hold election immediately. In this context, he also
submitted that the direction in the impugned order under
Annexure-3 that the Collector will act as an Administrator till
// 9 //
constitution of new Committee or until further order is bad in
law as this is not permitted under Sub-Section (1) of Section 32
of "the Act".
With regard to his second prayer i.e. for a direction
to hold election, he submitted that as per Section 28(1-a) of "the
Act", the tenure of the Committee is five years and as per Clause
(b) of Sub-Section (1-b) of Section 28 of "the Act", an election to
constitute a Committee shall be completed before expiration of a
period of one year from the date of its supersession in case of
society carrying on banking business. Since the present society
is carrying on banking business, therefore, in case of action
taken under Sub-Section (1) of Section 32 of "the Act", election
is bound to be held before expiry of period of one year as per
Clause (b) of Sub-Section (1-b) of Section 28 of "the Act". Here,
though the period of one year expired on 30.04.2021, however,
till date no election has been held for constituting a Committee.
He further submitted that though vide Annexure-6 to the
rejoinder, opposite party No.4 directed for preparatory
arrangements for election to the Committee of Co-operative
Societies in the State for which the process was to begin from
October, 2019 however, nothing was done. Relying on Sub-Rule
(1-a) of Rule-3 of the "1992 Rules", he submitted that in such
// 10 //
circumstance when the maximum time limit of supersession is
over, the opposite party No.4 has gone wrong in not suggesting
the date of election to the Government and accordingly
submitted that a direction be issued to the opposite party No.4
to suggest the date to the Government for holding of election
immediately. He also highlighted that in the meantime, many
assembly elections have been held in the country and recently
by-election has been held in Pipli Constituency to elect an
M.L.A. for Odisha Legislative Assembly. Therefore, the
authorities should be directed to hold election following Covid
protocols, when epidemic has shown a declining trend. Lastly,
Mr. Rath fairly submitted that since during pendency of this
petition, major portion of Part IXB of the Constitution of India
has been struck down as ultra vires by the Supreme Court, the
pleadings relating to same in the writ petition and rejoinder be
ignored. He also did not press the pleadings vis-à-vis Section
28(1-b) (ii) of "the Act". He further submitted that in view of the
changed circumstances, he is no more relying on the decision of
the Supreme Court as rendered in Rajkot District Co-operative
Bank Limited Vrs. State of Gujrat and others reported in
2015 (13) SCC 401 and the decision of this Court dated
21.12.2011 in the case of Ranjita Kahali Vs. State of Orissa in
// 11 //
W.P(C) No.23504 of 2011. He also made it clear that the
documents filed along with memo dated 11.01.2021 have
already been filed along with the rejoinder of the petitioner and
that the term of Committee of Karamadihi LAMPCS has also
expired.
7. Mr. S.K. Samal, learned Additional Government
Advocate raised a preliminary objection relating to the locus
standi of the petitioner to challenge the impugned order under
Annexure-3 as according to him, he is in no way personally
affected. In this context, he submitted that the petitioner has
not explained anywhere in the writ petition as to what right of
his, has been violated. In this context he relied on the decisions
of the Supreme Court rendered in the case of State of Orissa
Vrs. Madan Gopal Rungta, reported in AIR 1952 S.C. 12 and
Ayaaubkhan Noorkhan Pathan Vrs. State of Maharashtra and
others reported in (2013) 4 S.C.C. 465. Accordingly, he prayed
that the writ petition should be dismissed. On the impugned
order under Annexure-3, he submitted that the same has been
issued on expiry of the term of the Old Committee as per the
Explanation to Sub-Section (1) of Section 32 of "the Act" as no
election could be held to elect the new Committee. According to
him since vide Annexure-B/1, the Collector has been appointed
// 12 //
as Additional Registrar of Co-operative Societies to assist the
Registrar of Co-operative Societies and since the word
"Registrar" as per its definition under Section 2(i) of "the Act"
includes any persons who has been appointed to assist the
Registrar, therefore, it should be taken that though appointed
as an Administrator, the Collector, Sundargarh is in fact
functioning as the Registrar and thus there has been no
violation of the Explanation. Accordingly, he submitted that the
writ application is without any merit and should be dismissed.
8. Mr. H.M. Dhal, learned counsel appearing for opposite
party No.4 confined his submission to the second prayer of the
petitioner for a direction to the authorities to hold election. He
submitted that as per Section 28-A of "the Act", if the election is
to be held, it has to be held for all the Co-operative Societies
functioning in the State and it is to be held simultaneously for
connected Primary Societies, Central Societies & Apex Society. It
cannot be held for one Society like "the Bank" and its affiliated
societies and secondly, he submitted that for holding election,
the State Government has to make available officers and staff to
the Election Commission (opposite party No.4) for discharging
its functions.
// 13 //
9. In reply to submissions made by Mr. Samal & Mr.
Dhal, Mr. Rath submitted that the petitioner is a member of
Karamadihi LAMPCS, which is affiliated to "the Bank". In the
capacity as a member of LAMPCS, he was elected to the
Committee of "the Bank". Later on, he was elected as President
of "the Bank". During his tenure, he has performed and worked
for the larger interest of the poor farmers of the district and for
such work; he has been awarded successively at National Level
as indicated under Anenxure-2 series. Petitioner is aggrieved by
the arbitrary State action particularly relating to non-holding of
election of Committees of "the Bank" and its affiliated societies,
one of which, he is a member. According to him appropriate
averments have been made in paras-1, 5, 6 & 7 of the writ
petition. He further submitted that since the petitioner is a
member of a Primary Society, which is affiliated to "the Bank",
any attempt to impose an Administrator to look after the
management of "the Bank" instead of holding election to elect
democratic Committees affects the petitioner's right to have an
elected Committee within the time as prescribed under law and
his right to elect such committees. Thus he has every right to
challenge such action as he cannot be described as a stranger
having no interest in the functioning of "the Bank" and its
// 14 //
affiliated societies. He reiterated that the petitioner cannot be
described as stranger vis-à-vis the issues involving blatant
violation of Sub-Section (1) of Section 32 of "the Act" which
speaks of supersession of Committee not exceeding one year of a
Society carrying on business of banking and Clause (b) of Sub-
Section (1-b) of Section 28 of "the Act" mandating completion of
election to Committee before expiry of one year period from the
date of supersession in case of such society carrying on
business of banking. Here though one year period expired on
30.04.2021, since no election has been conducted, he as a
member of Primary Society i.e. Karamadihi LAMPCS has every
right to assail the same as his right to elect Committees has
been affected by not holding elections and by continuing the
illegal arrangement under Annexure-3 beyond the maximum
period of supersession. In this context, he relied on a decision of
the Allahabad High Court in the case of Committee of
Management, District Co-operative Bank Limited and
another Vrs. State of U.P. & others reported in (2005) SCC
Online All 1554. With regard to the two decisions of the
Supreme Court cited by Mr. Samal, he submitted that both the
decisions are factually distinguishable and have no application
to the case at hand. He reiterated that the petitioner cannot be
// 15 //
described as total stranger to the issues involved in the present
case. With regard to other submission of Mr. Samal defending
Annexure-3, while reiterating his earlier submissions, he again
submitted that the arrangement under Annexure-3 cannot be
continue beyond maximum period of one year.
With regard to submissions of Mr. Dhal, he submitted
that language of Section 28-A of "the Act" nowhere requires that
elections should be held simultaneously for all societies viz.
Primary, Central and Apex or not at all. With regard to the
second submission of Mr. Dhal on availability of officer of State,
he submitted that State has nowhere taken a plea that it cannot
spare its officials to opposite party No.4 for discharge of its
function. He reiterated that direction be issued to the authorities
to hold election immediately.
10. Before entering into the merits of this case, this Court
wishes to take up the issue of locus standi of the petitioner to
maintain the present writ petition as raised by Mr. Samal,
learned Additional Government Advocate. As indicated above he
submitted that there is nothing to show that the petitioner has
been personally affected and there exists no explanation in the
writ petition as to what right of the petitioner has been affected
and in this context, he has relied on two decisions of the
// 16 //
Supreme Court viz. Madan Gopal Rungta (Supra) and
Ayaaubkhan Noorkhan Patha (Supra).
In this context, it may be noted here that it is not
disputed that the petitioner is a member of a Primary Society i.e.
Large-sized Adivasi Multipurpose Co-operative Societies
(LAMPCS) at Karamadihi. It is also not disputed that the said
society is affiliated to "the Bank" and the petitioner was elected
as President to the Committee of "the Bank". Since the petitioner
happens to be a member of the LAMPCS affiliated to "the Bank",
it cannot be said that the petitioner has no interest in the matter
if "the Bank" as alleged is allowed to be managed by a person
who is not authorized under law to be in-charge of "the Bank" or
if such a person is allowed to continue beyond the maximum
period of supersession as fixed under law expires or if the
election is not held in due time as required under the provisions
of "the Act", thereby affecting the petitioner's right to elect
members of Committees of Societies and right to have
democratically elected Committee.
In this context, it may be noted here that as per
Section 27 of "the Act" final authority in a Co-operative Society
vests in general body of members. As per Sub-Section (1) of
Section 28, management of a Co-operative Society vests in a
// 17 //
Committee as constituted in accordance with the provisions of
"the Act" & Rules made there under and Bye-Laws. This
Committee exercises a number of important functions and
performs a number of duties as delineated in Sub-Section (1) of
Section 28. Sub-Section (1-aa) of Section 28 makes it clear that
every committee unless superseded shall have a tenure of five
years. Clause (b) of Sub-Section (1-b) of Section 28 lays down
that an election to constitute a committee shall be completed
before expiry of its term or before expiry of a period of one year
from the date of supersession in case of society carrying on the
business of banking. Relevant provisions of Section 28-A deals
(Emphasis supplied)
with election of members, President and Vice-President of the
Committee. The said Section is quoted hereunder:
"28-A. Election of members of
Committee - (1) (i) The President of the Committee
of every Society shall be indirectly elected in the
manner prescribed, by and from among the
members of the Committee, and
(ii) Other members of the Committee of a
(emphasis supplied)
Primary Society shall be elected in such manner by
and from among the General Body of members of
the Society qualified for the purpose organized into
// 18 //
such different constituencies as may be
prescribed.
(ii-a) Other members of the Committee of a
(emphasis supplied)
Central Society and an Apex Society shall be
(emphasis supplied)
elected in such manner by and from among the
qualified members of the Electoral College formed
in such manner organized into such different
constituencies as may be prescribed.
(iii) The Vice-President of the Committee
shall be elected by and from among the elected
members of the Committee in the prescribed
manner.
Provided that where the President of the
Committee of such a Society elected under this
section is not a woman, the office of the Vice-
President of the Committee shall be reserved for
woman.
XXX XXX XXX"
Sub-Section (1) of Section 32 of "the Act" makes it clear that
Committee of a Co-operative Society carrying on business of
banking can be superseded for a maximum period of one year.
(Emphasis supplied)
// 19 //
All the above discussions make it clear that an elected
Committee plays an important role in a Co-operative Society and
that maximum period of supersession of Committee of a society
carrying on banking business cannot exceed more than one year
and before such maximum period; election is bound to be held.
Here, admittedly the maximum period of supersession of one
year as provided under law has expired on 30.04.2021. In such
background, continuing with the arrangement under
Annexure-3 without holding election clearly violates statutory
provisions and affects the democratic functioning of "the Bank"
and its affiliated societies. Since the petitioner is a member of an
affiliated society, it cannot be said that in no way he has been
affected. Nobody can dispute that the petitioner has a vital
interest in proper running of LAMPCS as well as "the Bank". He
cannot be described as a stranger to the issues involved.
Further his right to vote/elect and right to have a democratically
elected Committees have been affected. In Madan Gopal Rungta
case (Supra) the issues were different. There the Supreme Court
laid down that Article 226 cannot be used for the purpose of
giving interim relief as the only and final relief and an appeal to
Supreme Court against such an order is maintainable. No doubt
in the said case, the Supreme Court has made it clear that
// 20 //
existence of the right is the foundation for exercise of
jurisdiction under Article 226 of the Constitution of India. In the
present case as indicated above continuation of the arrangement
under Anenxure-3 beyond one year of its promulgation without
election clearly affects the functioning of "the Bank" and its
affiliated societies thereby making it arbitrary inviting the
mischief of Article 14 of the Constitution of India. On account of
such continuation, the petitioner's right to have a democratically
elected Committees and his right to elect such Committees
directly or indirectly as a member of Society is clearly affected.
With regard to Ayaaubkhan Noorkhan Pathan case
(Supra) it may be noted here that there the Supreme Court has
made it clear that a stranger cannot be permitted to meddle in
any proceeding under Articles 226 of the Constitution of India
unless he falls within the category of aggrieved persons and a
writ petition is maintainable either for the purpose of enforcing a
statutory/legal right or when there is a breach of statutory duty
on the part of the authorities. In the above noted case, the
Supreme Court also referred to its own decision rendered in A.
Subash babu Vs. State of Andhra Pradesh, reported in (2011)
7 S.C.C. 616, wherein it has also been made clear that
expression "aggrieved person" denotes an elastic and an elusive
// 21 //
concept. It cannot be confined within the bounds of a rigid,
exact and comprehensive definition. Its scope and meaning
depends on diverse, variable factors such as the content and
intent of the statute of which the contravention is alleged, the
specific circumstances of the case, the nature and extent of
complaint's interest and the nature and the extent of prejudice
or injury suffered by the complainant. There also Supreme
Court quoted with approval its own decision rendered in
Ghulam Qadir Vrs. Special Tribunal reported in (2002)1 SCC
33, wherein it has been made clear that "The orthodox rule of
interpretation regarding the locus standi of a person to reach the
court has undergone a sea-change with the development of
constitutional law in our country and the constitutional courts
have been adopting a liberal approach in dealing with the cases
or dis-lodging the claim of a litigant merely on hyper-technical
grounds. XXX XXX XXX In other words, if the person is found to
be not merely a stranger having no right whatsoever to any post
or property, he cannot be non-suited on the ground of his not
having the locus standi." Here as indicated earlier as a member
of LAMPCS, the petitioner cannot be described as stranger to the
issues involved. In fact his right to have a democratically elected
// 22 //
Committee after expiry of maximum period of supersession and
his right to elect such a Committee has been affected.
Moreover the Allahabad High Court in a Division Bench
has clearly laid down in Committee of Management, District
Co-operative bank Ltd. case (Supra) that outgoing Committee
of its office bearer, or its member or members of general body of
Co-operative Society are interested in the welfare of the Co-
operative Society. They are aggrieved persons if there is any
arbitrary or unreasonable exercise of power affecting the Co-
operative Society. Therefore, it cannot be said that they don't
have the standing to file the writ petitions, wherein the
appointment of private persons as Administrators or in the
Committees were challenged. Here as indicated earlier, the
petitioner has enough interest to maintain the present writ
petition for proper management of "the Bank" as per law.
Keeping in mind the above discussions, this Court has
no hesitation in rejecting the contention of Mr. Samal, learned
Additional Government Advocate with regard to locus standi of
the petitioner to maintain this writ petition. It may be noted here
that in their counter affidavit filed by opposite party Nos.1 & 2
this point of locus has not been raised. Rather at para-9 of the
counter affidavit, the State has admitted that it is committed for
// 23 //
formation of democratically elected Committee of the Co-
operative Societies and is also committed to hold election sooner
the situation returns normalcy. In such background, this Court
holds that the petitioner has locus standi to maintain this writ
petition.
11. Now let us deal with various contentions raised by Mr.
Rath, learned counsel for the petitioner on various points and
the counter contentions.
Mr. Rath's first contention was that the impugned
order under Sub-Section (1) of Section 32 of the Act in
appointing District Collector as Administrator is illegal as the
four circumstances given thereunder at Clauses (i) to (iv) to
warrant such action were non-existent in the present case. In
this regard, Mr. Samal's submission was that the impugned
order has been passed as per Explanation to Sub-Section (1) of
Section 32 of "the Act" as no election could be held to elect a
new Committee after expiry of the term of the Old committee. In
such background, contention of Mr. Rath cannot be accepted. A
perusal of impugned order under Anenxure-3 would show that
the said order has been passed in view of the expiry of the term
of Committee of "the Bank". Obviously, the said order was
passed in tune with the Explanation appended to Sub-Section
// 24 //
(1) of Section 32 of "the Act" as election could not be conducted
to elect fresh Committee. Therefore first contention of Mr. Rath
fails.
Mr. Rath's second contention was that even if help is
taken of the Explanation attached to Sub-Section (1) of Section
32 of "the Act" to justify the impugned order, then also an
illegality has been committed by appointing Collector as
Administrator as there exists no concept of Administrator in the
Explanation. Explanation only speaks of vesting of management
in Registrar Co-operative Societies, Odisha and none else. This
contention of Mr. Rath cannot be accepted for the following
reasons. Section 2(i) of "the Act" makes it clear that Registrar
includes any person appointed to assist the Registrar when
exercising all or any of the powers of the Registrar. As per
Annexure-B/1, Collectors of revenue district of the State have
been appointed as Additional Registrars of Co-operative
Societies to assist Registrar of Co-operative Societies, Odisha.
Further vide Order No.II/Legal-26/98-19992/Co-op dated
21.09.1999 issued by the Government of Odisha in Co-operation
Department, the State Government in exercise of powers
conferred under Sub-Section (2) of Section 3 of "the Act" have
conferred on Additional Registrar Co-operative Societies, the
// 25 //
powers of the Registrar under Sections 6, 7, 8, 10(2), 12, 14, 14-
A, 16(2-a) 17, 28, 30, 30A, 32, 33, 35(3), 59(1), 63 to 66, 68, 70,
72, 73, 75 to 77, 90, 102 to 105, 106 (1)(b), 108, 114, 116(3),
120, 123-A(2), 128(3) of "the Act". After issuance of the above
order dated 21.09.1999; vide Office Order No.XLV-1/2012-
12219/legal-4 dated 20.07.2012, the opposite party No.2 in
exercise of powers conferred upon him under Sub-Section (2) of
Section 3 of "the Act" has made it clear that the Additional
Registrar can exercise his power for whole State of Odisha. A
cumulative reading of all these notifications makes it clear that
Collectors have been appointed as Additional Registrars of Co-
operative Society to assist the Registrar of Co-operative
Societies, Odisha and by virtue of order dated 21.09.1999
indicated above; the Additional Registrars have been conferred
with jurisdictions to the exercise many powers of the opposite
party No.2. Thus in the background of definition of Registrar
given at Section 2(i) of "the Act", it can be safely said that the
definition "Registrar" certainly includes Collectors of revenue
district of Odisha. Therefore, vide impugned order Annexure-3
since the Collector has been appointed as Administrator to
manage the affairs of "the Bank", it can be safely said that in a
way Registrar, Co-operative Societies, Odisha is looking after the
// 26 //
management of "the Bank". Therefore, the second contention of
Mr. Rath also fails.
Third contention of Mr. Rath vis-à-vis the impugned
order was that even if appointment of District Collector as
Administrator is accepted then also he cannot continue beyond
one year as the maximum period of supersession as per Sub-
Section (1) of Section 32 of "the Act" under which the impugned
order has been passed has already expired on 30.04.2021.
According to him, as the Society was doing banking business,
the maximum period of supersession is one year as per law.
Therefore, the impugned order dated 01.05.2020 cannot
continue beyond 30.04.2021, when one year period came to an
end. In the opinion of this Court, this contention of the
petitioner has got sufficient force. It is not disputed that the
society involved in this case carries on business of banking. A
perusal of impugned order under Anenxure-3 shows that the
same has been passed in exercise of power conferred under Sub-
Section (1) of Section 32 of "the Act" which deals with
supersession of committee. The same Sub-Section makes it clear
that Committee of a society carrying on business of banking can
be superseded for a maximum period of one year. Further
Clause (b) of Sub-Section (1-b) of Section 28 of "the Act" makes
// 27 //
it clear that in case of supersession of a Committee of Society
carrying on business of banking, an election to constitute a
Committee shall be completed before expiry of a period of one
year from the date of its supersession. In such background since
one year period vis-à-vis the impugned order dated 01.05.2020
under Annexure-3 has expired long back and since the society
in question carries on banking business, the order under
Annexure-3 passed under Sub-Section (1) of Section 32 of "the
Act", dealing with supersession of the Committee cannot be
allowed to continue beyond 30.04.2021 as the same has become
legally vulnerable. Accordingly, the same is quashed.
Natural corollary of quashing of Annexure-3 would
have been to direct the authorities to hold election to Committee
of Societies affiliated to "the Bank", whose terms have already
expired & thereafter for "the Bank" itself. But before that let us
apply our mind to the contentions raised by Mr. Dhal, learned
counsel representing opposite party No.4. Relying on Section 28-
A of "the Act", Mr. Dhal has contended that if election is directed
to be held, it has to be held for all the Co-operative Societies of
the State and it is to be held simultaneously for connected
Primary, Central and Apex Societies. A reading of Section 28-A
does not support such a contention as it nowhere says that
// 28 //
elections of all the Co-operative Societies operating in the State
or election of the connected Primary, Central and Apex Society
should be held simultaneously. Further Clause-(ii) of Sub-
Section (1) of Section 28-A clearly permits election of members of
the Committee of a Primary Society in such manner by and from
(emphasis supplied)
among the General Body of members of the society qualified for
the purpose organized into such different constituencies as may
be prescribed. Similarly clause-ii(a) of Section 28-A permits
election of members of the committee of a Central Society and
(emphasis supplied)
an Apex Society in such manner by and from among the
(emphasis supplied)
qualified members of the Electoral College formed in such
manner organized into such different constituencies as may be
prescribed. "1992 Rules" lay down the procedure for election to
the Committees of Societies .Sub Rule (1) of Rule 3 of "1992
Rules" permits election of Members, President & Vice-President
of the Committee of a Society to be held in the manner specified
(emphasis supplied)
thereinafter. Rule (1-a) of Rule 3 of "1992 rules" permits the
State Government to issue one or more Gazette Notifications
publishing the date or date as recommended by the State Co-
operative Election Commission calling upon the Co-operative
Societies to elect members of the Committee of Society as per
the provision of "the Act" and Rules made thereunder. Rule 4A
// 29 //
of "1992 rules" also permits an Electoral College to elect
members of a Central or Apex Society. An analysis of the above
(emphasis supplied)
provisions would show that different provisions of Section 28-A
as well as Rules (1) & (1-a) of Rule 3 of "1992 Rules" & Rule 4A
of the above Rules permit election of Committee of a Society - be
(emphasis supplied)
it Primary, Central or Apex. Therefore, the contention of Mr.
Dhal that if election is to be held, it should be held for all the
Societies functioning in the State cannot be accepted. Further
his submissions that if election is to be held it should be held
simultaneously for connected Primary, Central & Apex Societies
also can be not accepted as election of Committees of an Apex
Society and Central Society are dependent upon election of
Committees of Central Societies and Primary Affiliated Societies
respectively forming respective Electoral Colleges. Further, Sub-
Rule (1) of Rule 3 of "1992 Rules" also permits State Co-
operative Election Commission to recommend date or date and
on the basis of such recommendation State Government may
publish such date or date in one or more Gazette Notifications.
With Regard to phrase "date or date" used in Rule (1-a) of Rule 3
of "1992 Rules", it has to be interpreted to mean "date or dates"
in the background of preceding phrase "one or more
notifications" used therein. Any other interpretation of the said
// 30 //
phrase would lead to absurdity as otherwise the later word
"date" in the phrase "date or date" would become meaningless.
Such a consequence has to be avoided. It is well settled that
where language of a statute in its ordinary meaning and
grammatical construction leads to a manifest contradiction of
the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably
not intended, a construction may be put upon it which modifies
the meaning of the words or even the structure of the sentence.
(See Tirath Singh Vs. Bachittar Singh and others, AIR 1955
S.C. 830) Considering all these things, it is reiterated that there
exists no such requirement of holding simultaneous election to
all cooperative societies of State or the connected Primary,
Central and Apex Societies. In fact the use of phrases "one or
more notifications" Rule 3 of "1992 Rules" as referred above
negatives the contention of Mr. Dhal, learned counsel for
opposite party No.4 -Commission that election at all level to all
Co-operative Societies should be held simultaneously. Had it
been so, then the requirement of more than one notification and
provision for recommending of more than one date would not
have been there.
// 31 //
12. Mr. Dhal has also contended relying on Sub-Section (6)
of Section 28-AA of "the Act" that the State Government should
make available its officer and staff so that the State Co-operative
Election Commission (opposite party No.4) can discharge its
functions. But there exists no material on record to show that
the State Government is reluctant to render such assistance.
Rather in the counter affidavit dated 08.01.2021, it has made
clear that the State Government is committed for formation of
democratically elected Committee of the Co-operative Societies
and it is committed to hold election no sooner the situation
returns to normalcy. Further in its affidavit dated 10.08.2021
and 07.09.2021, the State has made it clear that as per Rule
3(1-a) of the "1992 Rules", the opposite party No.4 has to
recommend the date to Government for issuance of notification
calling upon the Co-operative Societies to elect the members of
the Committee of the Society and Government is to only issue
notification indicating the date. No argument has been made to
the effect that Corona Pandemic still holds out a problem now
for holding election to the Committees of "the Bank" and its
affiliated societies.
13. Considering all these things, particularly when
normalcy to a large extent has been restored and By-election
// 32 //
has been held in the State in the recent past and keeping in
mind the statutory requirements as discussed above, this Court
directs the authorities to go ahead with electing Committees of
"the Bank" as well as its affiliated societies where the terms of
Committees have already expired. For the said purpose, the
opposite party No.4 is directed to make the necessary
recommendation as per provisions of Rule 3(1-a) of "1992 Rules"
within a period of four weeks from the date of receipt of certified
copy of this order and should complete the process of election to
the above noted societies in accordance with law within a
reasonable period. Opposite parties 1, 2 & 3 are directed to
extend full cooperation to opposite party No.4.
Accordingly, writ petition is allowed. No cost.
...................................
Biswajit Mohanty, J.
Orissa High Court, Cuttack
The 1st November, 2021 /Prasant
