RAHAS BIHARI DAS Vs. STATE

JUDGEMENT

(1.) The decision of the Managing Director exercising the power of the Committee of Society by virtue of the deeming provision under sub-sec. (2) of S. 32 of the Orissa Co-operative Societies Act (hereinafter referred to as the "Act") for inclusion of 46 new members of the Society is under challenge in this writ application, inter alia, on the ground that this being a policy decision could not have been taken by the Managing Director and also on the ground that it is a mala fide exercise of power,

(2.) The petitioners have averred in the writ application that the Orissa Co-operative Housing Corporation Limited (opposite party No. 4) is the apex Society within the ambit of S. 2(a) of the Act. The Committee of the said Society has been superseded since October, 1990, and the Registrar of Co-operative Societies in exercise of his power under sub-sec. (1) of S. 32 of the Act has been appointing different persons to manage the affairs of the Society. One Shri Prasant Mohapatra was appointed as the Administrator of the apex Society by the Registrar and the said appointment was assailed in this Court in O.J. C. No. 873 of 1994, inter alia, on the ground that the appointment has been made by the Registrar not in exercise of his statutory power under the provisions of S. 32(1) of the Act, but at the instance of the Chief Minister of the State. This Court by its order dated 12-4-1994 quashed the appointment and directed the Registrar to make a fresh appointment without being influenced by any extraneous consideration. On the very next day of the order of this Court, i.e. on 13-4-1994, the Registrar again appointed the very same person as the Administrator of the apex Society. The subsequent appointment was again challenged by the members of the Jaipur Sub-Divisional House Building Co-operative Society Limited in O.J.C. No. 3025 of 1994 and this Court issued notice in the matter and stayed the appointment of Shri Mohapatra and directed that it would be open to the Registrar to permit the Managing Director to carry on the affairs of the apex Society. Pursuant to the aforesaid observation made by this Court, the Managing Director was permitted by the Registrar to exercise the powers of the Managing committee of the Society and while exercising the powers of the Committee of Society has passed orders on 16-5-1994 admitting 46 new members to the apex body. It is alleged in the writ application that not only the Managing Director could not have taken the decision of admission of members to the apex body even though by virtue of the deeming provision he exercised the power of the Committee of Society, but also the said decision of the Managing Director is vitiated by mala fides and it is intended only to get the nominated Director Shri Mohapatra as the elected President. It is further stated that the apex Society being a Society consisting of Primary House-Building Co-operative Societies as its members, inclusion of different organisations and persons having no connection with the house-building itself is an example of gross malice. It is further stated that indiscriminate admission of the firms and private limited companies as the members of the apex body without examining the requirement of sound business of those non-housing primary societies, firms and private limited companies, is contrary to S. 7 of the Act and such decision on the eve of the election notice, election notice having been issued on 17th of May, 1994, and the order admitting new societies having been made on 16th of May, 1994, is nothing but a malicious act on the part of the Managing Director for exposing the cause of Shri Mohapatra who had been installed twice, but has been prevented because of the orders of the Court from functioning as the President of the apex body. The petitioners also have stated that even if these new societies could be admitted as members of the apex body, but in accordance with the provisions of the Act, the Rules and the Bye-laws, they cannot have any voting right and they would be merely nominal members. The petitioners have also stated that prior to 16-5-1994, the apex body had 68 members and on 16-5-1994, the 46 new members were included.

(3.) Opposite parties 2 and 3 have filed a return stating therein that the power of admitting members to the apex body lies with the Committee of management under S. 28(1) of the Act and the Registrar has no role to play therein. It has been further stated that if there is any inconsistency between the provisions of the Act and the Bye-laws, then the Act would prevail.