Orissa High Court
Sri Sananda Meher vs Election Officer on 17 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) NO. 4677 OF 2023
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
.....
Sri Sananda Meher ...... Petitioner
-Versus-
Election Officer, Odisha State Handloom
Weavers Cooperative Society Limited
(Boyanika), Bhubaneswar and others,
...... Opp. Parties
Advocates appeared in these cases:
For Petitioner : M/s. Digambara Mishra
and D. Hota
For Opp. Parties : Mr. S.S. Dash, Senior Advocate
along with Mr. Sukanta Kumar Mishra,
Advocate
(For Opp. Party No.2)
Mr. H.M. Dhal, Advocate
(For Opp. Party No.5)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
------------------------------------------
Heard and disposed of on 17.02.2023
-----------------------------------------
JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. The Petitioner in this writ petition prays for a direction to
declare the nomination of Opposite Party No.2, namely, Sri Kosaleswar
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@ Kushaleswar Meher, as invalid being not in consonance with the
provisions of the Orissa Cooperative Societies Act, 1962 and Rules
framed thereunder, to set aside the undated order (Annexure-5) passed
by the Election Officer, Odisha State Handloom Weavers Cooperative
Society Limited-Opposite Party No.1 on the objection filed by the
Petitioner on 4th February, 2023 in respect of Constituency No.10, to set
aside the valid nomination published by the Opposite Party No.1 in
respect of Constituency No.10 and to set aside the final list of
contesting candidates at Sl.No.1 in respect of Opposite Party No.2 dated
9th February, 2023 under Annexure-10.
3. Mr. Mishra, learned counsel for the Petitioner submits that
pursuant to the election notice dated 20th January, 2023 (Annexure-1)
issued by the Election Officer, Odisha State Handloom Weavers'
Cooperative Societies Limited, Bhubaneswar-Opposite Party No.1,
provisional electrical roll was published for all constituencies on 25th
January, 2023 inviting objection. After considering the objection, final
voter list was published on 1st February, 2023. As per the programme,
8 (eight) nomination papers were received as on 3rd February, 2023 in
respect of Constituency No.10. On 4th February, 2023, the Petitioner
submitted his objection to the nomination filed by Opposite Party No.2.
Said objection was duly received by the Election Officer. However,
without considering the objection filed by the Petitioner in its proper
prospective, nomination paper filed by Opposite Party No.2 was
accepted and list of valid nominations was published on 7th February,
2023. Although the Petitioner made an application to supply documents
including the certified copy of nomination of Opposite Party No.2, but
the same was not paid any heed. On 9th February, 2023, final list of
contesting candidates was published under Rule 11 of the Odisha
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Cooperative Societies (Elections to the Committees) Rules, 1992. It is
his submission that the Petitioner had submitted objection to the
nomination of Opposite Party No.2 on the ground that he being elected
from the primary society, i.e. Maa Weavers' Cooperative Society Ltd.-
Opposite Party No.3, which is a defaulter in payment of dues of District
Central Cooperative Bank Limited, Sonepur Branch for an amount of
Rs.8,92,646/-, the nomination of Opposite Party No.2 could not have
been accepted. Before filing of nomination by Opposite Party No.2,
Maa Weavers' Cooperative Society-Opposite Party No.3 had already
received the Demand Notice No. 365 dated 18th January, 2023 calling
upon the said Society to repay the outstanding dues within a period of
fifteen days. Thus, in view of the provision under Section 28(3)(e) read
with Section 28(3-a)(i) of the Odisha Cooperative Societies Act, 1962
(for short 'the Act'), acceptance of nomination of Opposite Party No.2
is illegal, invalid and void abinitio. Although specific objection to the
effect that Primary Cooperative Society has outstanding dues and it was
a defaulter in repayment of loan dues, the same was rejected with a
finding that there is no evidence on record to show that Maa Weavers'
Cooperative Society Ltd. is defaulter in repayment of bank loan as on
2nd February, 2023. It was also observed therein that as per Section
28(3)(e) of the Act, three months notice should be given for repayment
of bank loan, which had not expired from the date of issue of such
notice dated 18th February, 2023. Objection to the nomination of
Opposite Party No.2 was submitted also on the ground that after
publication of final electoral roll for Constituency No.19 to which the
Opposite Party No.2 belongs, his name appeared at serial no. 35 as
'Kosaleswar Meher', but the Opposite Party No.2 filed his nomination
indicating therein that he belongs to Constituency No.19 at Sl.No.36
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which is not correct. One Bedamati Meher was at Sl.No.36 of
Constituency No.19. Further, the Opposite Party No.2 submitted his
nomination as 'Koshaleswar Meher' though in the final electoral roll,
his name was indicated as 'Kosaleswar Meher'. However, it was
rejected on the ground that to provide social justice and not to debar the
candidates from contesting the election, a minor change in the serial
number in the nomination paper of Opposite Party No.2 should be
ignored. Objection filed by the Petitioner was duly received by the
Election Officer, but his objection was rejected by an undated order
under Annexure-5. It is his submission that on the self-same ground,
the nomination of Ambika Meher was rejected on the ground of
reflection of caste erroneously. Likewise, nomination of Chhaya Guin
was also rejected in respect of Constituency No.21 as she did not fill up
the address in the nomination form. Further, nomination of Nailambar
Behera was rejected in respect of Constituency No.14 on the ground
that he did not fill up the address in the nomination form. Nomination
of Archana Pandit in respect of Constituency No. 17 was also rejected
on the same ground. Thus, the nomination of the Opposite Party No.2
should not have been accepted.
4. It is submitted that improper acceptance of nomination paper
comes under the purview of Section 67-B of the Act. Accordingly, the
Petitioner has filed Election Dispute No.2 of 2023 before the State
Cooperative Tribunal, Odisha, Bhubaneswar, but due to absence of
Judicial Member of the Tribunal, the same could not be taken up. He
has, therefore, filed the instant writ petition seeking for the aforesaid
relief.
5. Mr. Dhal, learned counsel appearing for the State Cooperative
Election Commission-Opposite Party No.5 vehemently objects to the
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same. It is his submission that in view of Section 28-B of the Act,
election process should not be interfered with by any Court of law. He
also refers to the decision in the case of Kailash Chandra Dandapat
and others etc. -v- Secretary Birabhadraswar Weavers' Co-operative
Society Ltd. and others, reported in AIR 1994 Orissa 1, in which it is
held that acceptance or rejection of nomination paper can only be
challenged in a properly constituted election dispute after the result of
the election is declared. He further submits that by the time the writ
petition was filed, there has already been publication of final list of
contesting candidates along with symbols. Thus, at this stage,
interference of this Court to the election process will be fatal itself and
it will frustrate the purpose of conducting election. It is his submission
that there is no material on record available to come to a conclusion that
by the date objection of the Petitioner was considered, Maa Weavers'
Cooperative Society was a defaulter. The issue with regard to the
default of Maa Weavers' Cooperative Society-Opposite Party No.3 can
only be decided by receiving evidence to that effect. Further, the
description of Opposite Party No.2 in the nomination paper is not fatal
as it does not create any ambiguity or confusion with regard to his
identity. Hence, the Election Officer has committed no error in
rejecting the objection filed by the Petitioner to the nomination of
Opposite Party No.2. However, if the Petitioner files a properly
constituted election dispute after declaration of the result, the same can
be adjudicated by the State Cooperative Tribunal receiving evidence
from the parties.
6. Mr. Das, learned Senior Advocate appearing for Opposite
Party No.2, who has entered appearance by filing caveat, reiterates the
submission made by Mr. Dhal, learned counsel for the State
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Cooperative Election Commission. He also relied upon the decision in
the case of Sri Sulabh Charan Samal and others -v- State of Orissa
and others, reported in 2008 (Supp.I) 687, wherein paragraphs-18 and
19 are relevant for our consideration which run thus:
"18. The Supreme Court considering the aforesaid
submissions came to the following conclusion:
"In view of our finding that preparation of the
electoral roll is being an intermediate 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 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. It is not disputed that the election in
question has already been held and the result thereof
has been stayed by an order of this Court, and once
the result of the election is declared, it would be
open to the Appellant to challenge the election of
returned candidate, if aggrieved by means of an
election petition before the election tribunal."
19. Right to election is not a civil right but it is a right
granted by a statute and hence where the statute itself
provides the forum to adjudicate the questions connected
with it, infringement of right granted can be assailed only
in the designated forum and not by a petition invoking
jurisdiction of the High Court under Articles 226 and 227
of the Constitution. It is therefore logical to hold that a
Petition under Articles 226 and 227 of the Constitution
would not lie because if the legislature creates a right and
also creates the adjudicating body to decide disputes
arising from infraction of the right, Writ Petition in the
High Court should not be entertained for relief against
such infraction."
He, therefore, submits that the allegation made by the
Petitioner constitutes a pure election dispute and thus it should not be
adjudicated by invoking power under Articles 226 and 227 of the
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Constitution. He further submits that since the Petitioner has a remedy
to file a properly constituted election dispute after the result is declared,
the writ petition is also premature and warrants no interference.
7. Taking into consideration the submissions made by learned
counsel for the parties, it is apparent that the election process for
election to the Orissa State Handloom Weavers' Cooperative Society
Ltd. (Boyanika) was started by publishing the notice on 20th January,
2023 (Annexure-1). As per the programme, nomination papers were
filed, objections were received to the nominations so filed and those
were considered by the Election Officer on 6th February, 2023.
Accordingly, publication of the list of valid nomination was made on 7th
February, 2023 and after filing of the application for withdrawal of the
nomination, final list of contesting candidates along with symbol was
published on 9th February, 2023.
8. Essentially, two objections were raised by the Petitioner
questioning the acceptance of nomination filed by Opposite Party No.2.
Firstly, it was objected that the Opposite Party No. 2 is an elected
member of Primary Cooperative Society, namely, Maa Weavers'
Cooperative Society Ltd.-Opposite Party No.3. It is alleged to be a
defaulter in repayment of loan dues and a demand notice was issued by
the Bolangir District Central Cooperative Bank Ltd. for realization of
the amount vide Notice No.365 dated 18th January, 2023 requiring the
said Society to repay the loan within fifteen days. Although such a
notice was issued, but there is no material available on record to show
that on the date of filing of the nomination by Opposite Party No.2,
Maa Weavers' Cooperative Society Ltd.-Opposite Party No.3 was a
defaulter. This aspect requires factual adjudication. Only because a
demand notice was issued to the Opposite Party No.3 for repayment of
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loan, it cannot be conclusively held that it was a defaulter on the date
when the Opposite Party No.2 filed his nomination. Further, it is
apparent that except the demand notice, the Petitioner had not produced
any material to show that Maa Weavers' Cooperative Society-Opposite
Party No.3 was a defaulter on the date of filing of the nomination by
Opposite Party No.2. However, Mr. Mishra, learned counsel for the
Petitioner relied upon the decision in the case of Rabinarayan Nanda -
v- State of Odisha and others, reported in 2000 (II) OLR 539, wherein
this Court held at paragraph-8 as under:
"8. We, therefore, considering the facts and
circumstances of the case and taking into consideration
the provisions of law involved, hold that for non-payment
of the dues within the prescribed period, the petitioner
incurred disqualification automatically and ceased to
continue as a member or President of the Committee of
the Society on the date of incurring such disqualification.
The order in Annexure-4 is only an intimation to the
petitioner that he has incurred disqualification and
ceased to be a member/President of the Committee of the
Society, Therefore, we do not find any merit in the writ
application and the same is dismissed."
The aforesaid case law is of no assistance to the Petitioner as
there is no concrete evidence available on record to come a conclusion
that Maa Weavers' Cooperative Society Ltd.-Opposite Party No.3 was a
defaulter on the date when the Opposite Party No.2 filed his
nomination. Thus, rejection of objection of the Petitioner on this score
does not appear to be improper or illegal.
9. Secondly, it was objected that although the name of the
Petitioner appears at Sl.No.35 in respect of Constituency No.19, but, in
the nomination paper, he indicated that he belongs to Sl. No.36 in
respect of Constituency No.19. One Bedamati Meher was at Sl. No. 36
in respect of Constituency No.19. Further, spelling of the name of
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Opposite Party No.2 in the nomination paper was different than that
appears in the final electoral roll. On the self-same ground, the
nomination paper of one Janardan Singh was rejected by the Election
Officer stating that he has described himself as Danardan Singh. The
aforesaid objection was apparently not raised before the Election
Officer. There is also no material to appreciate the submission of Mr.
Mishra, learned counsel for the Petitioner to the effect that nomination
of Janardhan Singh was rejected on the ground that he described his
name differently than it appears in the electrical roll. The Election
Officer considering the objection raised has opined that minor change
in the serial number should not be a ground to reject the nomination of
Opposite Party No.2 as the identity of Opposite Party No.2 does not
become ambiguous. Thus, ignoring such minor defect, the nomination
of Opposite Party No.2 was accepted. Hence, the Election Officer has
committed no error in overruling this objection.
10. Section 28-B of the Act clearly stipulates that election process
should not be interfered with by any Court of law. Further, in view of
the ratio decided in the cases of Kailash Chandra Dandapat & others
and Sri Sulabh Charan Samal (supra), the election process should not
be interfered with invoking writ jurisdiction under Articles 226 and 227
of the Constitution and it can only be challenged by filing a properly
constituted election dispute under Section 67-B of the Act after
declaration of the result.
11. As such, I find no merit in the writ petition. Accordingly, the
writ petition being devoid of any merit stands dismissed.
12. However, dismissal of the writ petition does not preclude the
Petitioner from raising the issue involved herein in a properly
constituted election dispute after publication of the result in respect of
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Constituency No.10 of Maa Weavers' Cooperative Society Ltd.-
Opposite Party No.3.
13. In the circumstances, there shall be no order as to costs.
...........................
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack,
Dated 17th February, 2023/bks
