Orissa High Court
Sanatana Tandia And Another vs Collector-Cum-Dm on 19 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P(C) No.12286 of 2022
(Through hybrid mode)
Sanatana Tandia and another .... Petitioners
Mr. Subir Palit, Senior Advocate
-versus-
Collector-cum-DM, Boudh and .... Opposite Parties
others
Mr. P.C. Panda, AGA
Mr. Manoj Kumar Mohanty, Advocate
for O.P.3
CORAM: JUSTICE ARINDAM SINHA
ORDER
Order No. 19.05.2022
02. 1. Mr. Palit, learned senior advocate appears on behalf of
petitioners and submits, by impugned order dated 5th May, 2022
passed by Collector and District Magistrate, Boudh, membership of
his clients have been impliedly invalidated. He refers to following
passage from impugned order, reproduced below.
"In view of my findings and observation given above, I am
of the view that the DCS, a prime institution of Sports of the
District cannot be given with a liberty to act autocratically
and it is held that the memberships which were taken
prior/till the year 2013 including the life members that is to
say 109 numbers in total are held to be genuine one and
they have the authority to exercise all the powers of a valid
member and the memberships taken in the year 2016 and
2020 cannot be taken as accepted until they are accepted
properly. Their memberships will be accepted or declined
as per the guidelines and by-laws of the Association and it
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will be decided by the new body. For smooth and impartial
election, the ADM, Boudh, the District Sports Officer,
Boudh and a representative duly nominated by Odisha
Cricket Association (OCA) will have the authority under
whose supervision the upcoming election of DCA, Boudh
will be held.) "
2. He submits, though this Bench by order dated 13th May, 2022
in writ petition W.P.(C) no.12060 of 2022 (District Cricket
Association, Boudh vs. Collector and District Magistrate, Boudh
and others) held that the Collector in having complied with directions
made in order dated 1st Jul, 2020 passed by Co-ordinate Bench in
W.P.(C) no.15580 of 2020, thereby assumed jurisdiction but the order,
being impugned order herein, is without authority or jurisdiction.
However, in paragraph 8 of said order this Bench provided for
contingency, whereby impugned order having been set aside, would
revive. He submits, when this Bench had found that impugned order
was without jurisdiction it became null, non est and void ab initio.
There cannot be a contingency where it can be revived. He relies on
judgment of the Supreme Court in Deepak Agro Foods vs. State of
Rajasthan, reported in (2008) 7 SCC 748, paragraph 17, reproduced
below.
"All irregular or erroneous or even illegal orders cannot be
held to be null and void as there is a fine distinction between the
orders which are null and void and orders which are irregular,
wrong or illegal. Where an authority making order lacks
inherent jurisdiction, such order would be without jurisdiction,
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null, non est and void ab initio as defect of jurisdiction of an
authority goes to the root of the matter and strikes at its very
authority to pass any order and such a defect cannot be cured
even by consent of the parties. (See: Kiran Singh & Ors. Vs.
Chaman Paswan & Ors.). However, exercise of jurisdiction in a
wrongful manner cannot result in a nullity - it is an
illegality, capable of being cured in a duly constituted legal
proceedings.
3. Mr. Mohanty, learned advocate appears on behalf of opposite
party no.3 and submits, affairs of the Association were/are in turmoil.
Some of the members/affected parties had moved this Court by said
writ petition W.P.(C) 15580 of 2020. The Co-ordinate Bench, without
expressing any opinion on the merits of the case, disposed of the writ
petition directing the Collector to take a decision on the
representations filed by petitioners therein, and pass appropriate orders
in accordance with law. As on date of the order (1st July, 2020) the
amendment of inserting section 11A in Societies Registration Act,
1860 was not there. The amendment was with effect from 13th May,
2021. Hence, impugned order cannot be void ab initio as it was in
compliance and pursuant to directions in said order.
4. Mr. Palit replies that even prior to amendment the Act did not
provide for the Collector to be adjudicating authority under the Act. It
is the Registrar being the Additional District Magistrate (ADM). On
query from Court he submits, his clients though interested to assert
their right of membership as infringed upon by operation of impugned
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order, if they are not able to do so within the time frame given by
order dated 13th May, 2022 (supra) then, thereby, impugned order
though being without jurisdiction, null, non est and void ab initio will
revive to affect membership status of his clients. He, therefore, seeks
interference to declare impugned order void ab initio as having been
made by the authority lacking inherent jurisdiction.
5. Perused impugned order. The Collector says at the outset that
the case was taken up for orders in compliance to the order of this
Court in W.P.(C) no.15580 of 2020.
6. Paragraph 8 from order dated 13th May, 2020, is reproduced
below.
"Petitioners will by 25th May, 2022 approach the Court of
Senior Civil Judge having jurisdiction with their grievance
on persons being allowed to continue in offices held in the
Association as well as election thereto, upon notice to, inter
alia, private opposite party no.3. Till then impugned order
will remain stayed. In event said Court is moved, impugned
order will stand quashed but available for reference by
said Court, for adjudicating the disputes including making
interim directions with regard thereto. Otherwise, on no
approach to the civil Court or approach without noticing,
inter alia, private opposite party no.3, impugned order will
revive and continue unless interfered in accordance with
law."
7. It is apparent that the direction of contingency was made to
ensure reference of the disputes to the Senior Civil Judge having
jurisdiction. The contingency provided for omission of taking the
disputes, to the Court having jurisdiction since turmoil in the affairs of
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the Association exists. Impugned order had also directed for starting
process of election within 10 days, after which there was issuance of
commencement of election process made by the Registrar (ADM). At
this stage Mr. Palit submits, since by order dated 13th May, 2022
(supra) impugned order was held to be without authority or
jurisdiction, the cloud cast over his clients' membership stands
removed.
8. By memo dated 10th May, 2022 there was notification for
commencement of election process, issued by the Registrar (ADM).
Such commencement was found as cannot be said to be due
commencement creating a bar or interference in writ issued as made
by said order dated 13th May, 2022 (supra). In the circumstances, the
Registrar (ADM) may, on approach or otherwise in the facts and
circumstances, issue fresh notification for conduct of elections, subject
to reference, in the meantime, of disputes to the Senior Civil Judge
having jurisdiction.
9. The writ petition stands disposed of as above.
(Arindam Sinha)
Judge
Prasant
