AJAYA KUMAR MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) By filing this writ petition, the petitioners have assailed the validity of the notification dated 18.11.2014 under Annexure-1 as being illegal, arbitrary and violative of provision of Orissa Co-operative Societies Act and Rules made there under. Petitioners while assailing the order under Annexure-1 also seeks direction for allowing only the eligible voters as on date of publication of the election notifications dated 17.10.2014 and 27.10.2014 thereby eliminating the voters who have been included on their deposit being made following the notification under Annexure-1 that too after the publication of notification for election vide Annexure-4 on 27.10.2014 under Rule 4(1) of the Orissa Co-operative Societies (Elections to the Committees) Rules, 1992.

(2.) In challenging the impugned order vide Annexure-1, the learned Senior counsel submitted that issuance of the aforesaid notification in purported exercise of power under Section 19 (2) of the2 Orissa Co-operative Societies Act, 1962 hereinafter called as "the OCS Act" conferring voting rights on the members after the commencement of the poll process is in utter disregard of the statutory rules contained in Rule 6(1) (a) of the Orissa Co-operative Societies (Elections to the Committees) Rules, 1992 hereinafter referred to as "the Rules, 1992". Learned senior counsel submitted that the subject Co-operative was inserted in Part IX-B of the Constitution i.e. from Articles 243ZH to 243ZT. In view of the Constitutional scheme, the superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections to a Co-operative Society shall vest in such an authority or body, as may be provided by the Legislature of a State by law. In referring to Section 28AA of the OCS Act, learned senior counsel submitted that the superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections to a Co-operative Society has vested in the State Co-operative Election Commission consisting of a State Co-operative Election Commissioner appointed by the Governor. In the above premises, learned senior counsel submitted that in view of the power vested in the State Co-operative Election Commissioner and further after the notification for the election was brought out the Registrar had no power or authority to intervene in the election process in any manner, the power available to a Registrar under Section 19(2) of the Act cannot be stretched to this extent and as such the issuance of the order vide Annexure-1 introducing inclusion of additional voters to the voter list after the publication of the election notification is per se bad. Further referring to provisions contained in Sub-rule 1(a) of the Rule 6 of the Rules, 1992, learned senior counsel submitted that the voters for the purpose of the election notified will be the persons/members as on the date of publication of the date of election and are the only qualified voters and Registrar by introducing the notification under Annexure-1 has made an attempt to interfere in the election process tried to create new voters after the cutoff date and thus claimed the same is prohibited under law. In substantiating his case, the learned senior counsel appearing for the3 petitioner cited a decision as reported in 1995 AIR(Ori) 23 and submitted that law is well settled as decided in the above decision giving scope to the writ court for interfering in a election dispute concerning Cooperative Societies.

(3.) On the other hand, learned Government Advocate on his appearance apart from filing a counter submitted that since the process of election has already commenced following provisions under Section 28B of the Act, this Court should not interfere in the election process. The Government Advocate appearing for the State Co-operative Department submitted that inclusion of the voters or either non-inclusion in the present election process is a disputed question of fact and as such, these disputes cannot be adjudicated upon in a writ petition under Article 226 of the Constitution of India. In substantiating introduction of the notification under Annexure-1, learned senior counsel submitted that, attempt of the State to include the voters pursuant to notification vide Annexure-1 is a constructive attempt of the Government in the premises of less number of voters in various Societies and in apprehension of depriving larger sect of voters who are found to be ineligible to vote as on the date of the election notification. Learned senior counsel further submitted that preliminary voter list as required under law has already been published on 18.12.2014 i.e. 40 (forty) days prior to the date of election and the petitioner has a scope for submitting a objection to the same as provided under Sub-section 5 of Section 6 of the Rule, 1992. If he has any objection in the preparation of the provisional electoral roll, it is open to him to file objection before the Election Officer in writing within four days from the date of publication of the said Electoral Roll and such matter can be decided by the Election Officer after such inquiry as may deem necessary by passing an order within three days from the last date of receipt of objections.