TARA PRASAD PATTNAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner challenges the order of the State Government dated 19th of August, 1994, passed in purported exercise of power under Section 123 of the Orissa Co -operative Societies Act (hereinafter referred to as the 'Act'), inter alia, on the ground that the said order has the effect of overriding the provision of Section 28(1 - c) of the Act and as such the executive authority cannot have power to override a statutory provision. The order is also challenged on the ground of mala fides.

(2.) THE petitioner's case in nutshell is that the Bhubaneswar Town Development House Building Co -operative Society which is the primary society was registered on 18 -8 -1983 with opp. party No. 3 as the President of the Preliminary Committee. In terms of Section 28(I -c) of the Act, the life of the Preliminary Committee expired on 17.8.1994.' The Secretary of the Committee who is the Chief Executive Requested the Assistant Registrar of Co -operative Societies by tetter dated 18.8.1994 to extend the term of the Preliminary Committee for one year and the Assistant Registrar in his turn submitted the proposal to the Registrar, Co -operative Societies, on the ground that the Society had not taken steps for formation of constituencies and conduct of election to the Board of Management of the Primary Society. The aforesaid recommendation has been annexed as Annexure -2 to the writ application. The Registrar by his order dated 19.8.1994 recommended to the State Government for extension of the term of the Preliminary Committee of the Primary Society. The State Government there upon passed the impugned order on 19.8.1994, which has been annexed as Annexure -1 to the writ application. The aforesaid order was challenged in this writ application on 5 -9 -1994 On 8.9.1994 this Court passed an interim order and stayed the operation of Annexure -1 so far as it extends the life of the Preliminary Committee of the Bhubaneswar Town Development House Building Co -operative Society beyond one year of the assumption of the charge and opp. party No. 3 was injuncted from functioning and exercising power. But the said opp. party No. 3 had been elected as President of the apex body, namely, the Orissa Co -operative Housing Corporation Limited. The petitioner in the context assails his continuance as such President of the apex body on the ground that having ceased to become the President of the Primary Society, opp. party No. 3 is not entitled to continue as the President of the apex body. During the pendency of the writ application, an election to the primary body has been held and said opp. party No. 3 has been elected as the President of the primary body on 31.10.1994.

(3.) OPP . party No. 1 has filed a counter affidavit denying the allegations of malice so far as exercise of power under Section 123 of the Act is concerned. It has bean stated in the said counter affidavit that the general body of the Town Development House Building Co -operative Society unanimously resolved to have opp. party No. 3 as President of the Preliminary Committee According to the counter affidavit, there is no express provision in the Act that on expiry of the term of a Preliminary Committee of a society, the management shall vest in the Registrar if a successor -committee has not been constituted. It is averred that co -operative societies being democratic organisations and in view of the unanimous resolution of such society, the State Government has allowed opp. party No. 3 to continue for sometime in exercise of power under Section 123 of the Act so that election to the body can be held. It is alleged that neither there is any malice therein nor any arbitrariness.