NARASINGHA CHARAN ACHARYA Vs. STATE

JUDGEMENT

(1.) Challenge in this writ application under Arts.226 and 227 of the Constitution is to the order of removal of the petitioner, as per Annexure-7, by the Assistant Director of Fisheries-Assistant Registrar, Co operative Societies, Cuttack, on the ground that while functioning as the President of the Pattamundai Primary Fishermen Co-operative Society (for short, the 'Society') from 12-11-1973, his continuance beyond 13-11-1982 after having completed a period of nine years was illegal in view of the provision contained in S.28 (4) (b), Orissa Co-operative Societies Act, 1962 (the Act, for short). As averred in the writ application and the counter affidavits put in by the opposite parties, the petitioner was first elected to be the President of the Society in 1975 and for the second term in 1980 and had been continuing as such till the time of his removal as per Annexure-7 D/-17-8-1983. As submitted at the Bar, the petitioner had also been functioning as the President of the Primary Society constituted in November, 1973. Thus, by the time of his removal in August, 1983, the petitioner had completed a period of more than nine years while functioning as the President of the Society, but not by the date of his nomination in 1980.

(2.) Mr. Nayak, appearing for the petitioner, has contended that S.28 (4) (b) of the Act refers to a total period of nine years by the date of filing of the nomination and not beyond that time and in the absence of any provision in the Act for removal of any office-bearer of the Society, after his valid election having qualified as an eligible candidate by the date of filing of his nomination, on this ground, the impugned order has been passed without jurisdiction and without even prior notice to show cause or an opportunity of being heard and therefore, it is to be quashed. The learned Additional Government Advocate, appearing on behalf of the opposite parties 1 to 5 and Mr. Malik, appearing for the opposite party 6, have contended that the impugned order is not a punitive one, but is a communication made to the petitioner regarding his ineligibility to continue in office beyond a total period of nine years and this order is legal and valid. It has also been submitted by them that besides this disqualification, the petitioner has completed two consecutive terms as a member of the Committee and is not entitled to continue in office as the President of the Society in terms of S.28 (4) (a) of the Act. It is contended that the petitioner has preferred an appeal against the impugned order and he can as well raise a dispute under S.68 of the Act and this is not a fit case where this Court should, in exercise of its extraordinary jurisdiction interfere with the impugned order.

(3.) Section 28 (4) of the Act reads :