Daluram Dehury And Others vs State Of Odisha And Others ... Opposite ...
2025 Latest Caselaw 4115 Ori

Orissa High Court

Daluram Dehury And Others vs State Of Odisha And Others ... Opposite ... on 18 February, 2025

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

    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.   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

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

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

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.

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

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.

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

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

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

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

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

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."

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

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

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