KAPILENDRA POTHAL Vs. DY REGISTRAR CO OP SOC

JUDGEMENT

(1.) This application under Article 226 of the Constitution calls in question the election of opposite party No. 3 as a Director of the Balasore District Co-operative Central Bank Limited (hereinafter referred to as the Bank) on 18-4-1981.

(2.) The Bank consists of 12 Zones out of which th Nilgiri-Oupada Zone is one and it also happened to be a constituency for electing a Director for the Board of the Bank. The said zone has 12 co-opera'ive societies and from among the 12 representatives each representing one society out of these 12, a Director had to be elected. The Deputy Registrar of Co-operative Societies, Balasoer Division (opposite party No.1), issued notice under Section 28 of the Orissa Co-operative Societies Act (hereinafter referred to as the 'Act for holding election to the Board of Directors of the Bank in a General Body Meeting of the Bank which was scheduled to be held on 20-7-1980 for the said purpose. An election programme was published as per Annexure-1. Only two representative out of the 12 relatirg 10 the relevant zone-petitioner and opposite party No. 3-filed their nomination for the election to be held on the 20th of July, 1980. The nomination of opposite party No j was rejected by the Deputv Registrar who was also the Election Officer by .order dated 16th July 1980, and since petitioner was the only remaining candidate he was noticed to have been elected from the constituency as an uncontested Director. Against the order of rejection of his nomination, opposite party No. 3 filed an appeal being Appeal Case No. 6 of 1980 before the Registrar (opposite party No. 2), By airier dated 1 -9-1980 the Registrar allowed the appeal and set aside the order of the Election Officer rejecting the nomination of, opposite party No. 3 vide Annexure-2. The appellate authority directed : ''...........This being so, his decision on the legality or otherwise of the second meeting and of the resulutions passed at the second meeting amonts to an exericise of jurisdiction which he really did not possess under the low. In view of the above his order dated 16-7-1980 is hereby set aside." In terms of the appellate order, the Dy. Registrar (opposite party No. I) gave the following notice : "Notice No. 1720/Dated 23-3-1981. IEIII-Dk 2/80 In continuation of his office Notice No. 678 dated 5-2-1981, which was published in the daily Oriya Newspaper (Matrubhumi) on 13-2-1981, the programme of election of members to the Committee of Management of Balasore District Co-operative Central Bank Ltd. from Nilgiri-Oupada Constitu- tency which is scheduled to be held on 18-4-1981 at 2 p. m. in the permises of Balasore District Co-operative Central Bank Ltd. is given below. All the members of Nilgiri Oupada Constituency are requested to attend and particape in the election General Body Meeting according to the programme. Sd, 23-3-1981, Deputy Registrar, Co-operative Societies, Balasore, Division, Balasore Cum Election Officer, Balasore District Co-operative Central Bank Limited. Programme of election of member to the Board of Management , of Balasore District Co-operative Central Bank Ltd. from NiJgiri-Oupada Constitutency on 18-4-1981 at 2 p. m. (See below chart of programme) <FRM>ANISH13.htm</FRM> As would appear from Annexure-8, election being held, opposite party No. 3 received 7 while petition received. Petitioner has contended that the appeel to the Registrar was not maintainable- the election of the petitioner having not been set aside, a fresh elelction could not be held at any rate, when the Election Officer proceeded to give effect to the appellate order for holding of the election, in the absence of any provision that the election process could be condueted from the stage cf scrutinizing nominations, the entire gammeck should have been repeated from the beginning of the election process.

(3.) Opposite party No. 3 alone has filed a counter-affidavit wherein inter alia it has been contended that Sec. 68 of the Act provides for raising a dispute against the election. It has also been contended that an appeal lay against the rejection of the nomination under Sec. 109(1)(e-1) and, therefore, the appeal by opposite party No. 3 was maintainable and the direction given by the Registrar is unexception able. Petitioner has been contending that a dispute should have been raised His own contention should be utilised against the petitioner and in view of the fact that a special provision has been made by the statute for challenging the election, the write application should not be entertained.