BIJAY MAJHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners in this writ petition are members of different Cooperative Societies as well as elected Directors of different Primary Co-operative Societies. Challenge is made in this writ petition to the notification of the Government in its Co-operation Department dated 23-12-2004 and 13-7-2005 which were published in the Orissa Gazette on 27-12-2004 and 14-7-2005 respectively as arbitrary, unreasonable, discriminatory and contrary to the provisions of the Orissa Co-operative Societies Act, 1962 (hereinafter referred to as 'the Act') besides the other grounds as narrated therein. The prayer as made in the writ petition is quoted hereunder : "The petitioners, therefore, most humbly pray that the Hon'ble Court may graciously be pleased to issue Rule Nisi calling upon the opp. parties to show cause as to why the reservations made in the Co-operative Act and Rule and the Election Rule-1992 vide Annexure-3 shall not be held ultra vires and accordingly shall not be quashed; As to why it shall not be held that the reservation principle should not be made applicable to the co-operative societies and/ or in alternative, it shall not be held that the reservation policy imposed upon the cooperative societies are not proper, justified and not in consonance with law. As to why there shall not be a direction not to hold election of Central Society on the basis of the invalid rule and Act; And as to why there shall not be a direction to defer the election process for central co-operative societies till the policy for reservation are settled; If, the opp. parties fail to show cause or show insufficient cause, the aforesaid rule may be made absolute and the writ application may be allowed; And/or, further be pleased to pass any other appropriate order(s), direction(s), as this Hon'ble Court deem just and proper; And for this act of kindness, the petitioners shall as in duty bound ever pray."

(2.) Mr. Sanjit Mohanty, learned Senior Counsel appearing for the petitioners contended that the co-operative societies are separate entity operating in a particular territory and the members of such societies are the voters. They are governed under the framework of bye-laws framed by them. The executive powers vests with the management of the society. He further submitted that initially under the Act, there, was no reservation criteria for co-operative societies which was introduced at a much later stage and, accordingly, instruction was issued to amend the bye-laws of such societies to ensure membership from different categories of members by Orissa Act 28 of 1991. Once again by Orissa Act 10 of 2001, there was certain amendment to the provisions regarding reservation. In this process, reservation criteria was imposed upon the society through amendment of Section 28(2)(c) of the Act and the societies were compelled to procure membership from different communities as stated in paragraph-10 of the writ petition. According to the petitioners, there should not have been any reservation in the co-operative societies or the reservation should be in accordance with the proportion of the category of members available in the general body of the society. Mr. Mohanty further argued that the newly amended Rule 6, sub-rule (3) and Rule 7, sub-rule (4) of the Orissa Co-operative Societies Election Rules, 1992 runs contrary to the provisions of Section 28(A)(ii) of the Act and, thus, they being ultra vires to the said section should be declared as such.

(3.) Counter affidavit and rejoinder affidavit have been filed. Relying on the counter- affidavit filed on behalf of the State, learned Advocate General contended that reservation criteria has long since been introduced in the Act and has been amended from time to time. Such amendments were challenged before this Court in various writ petitions and have been held to be intra vires. He further contended that by the impugned amendment of the Act, the basic structure of the Act has not been changed, more specifically, the amendment of Section 28 of the Act which is challenged by the petitioners has not brought about the criteria of reservation in the co-operative societies for the first time. Such amendments previously made having been held to be intra vires by this Court, applying the same principles, the present amendment to the Act cannot be held to be unreasonable or discriminatory, contravening Article 14 of the Constitution nor it can be held to be a colourable piece of legislation. With regard to the amendment of the Election Rules by the notification under Annexure-3, learned Advocate General submitted that the grievance of the petitioners with regard to the said amendment whereby it has been stipulated that the membership of the society shall be organized, constituency-wise either on territorial or numerical membership basis as may be determined by the committee and arrayed in the manner as provided therein, so that where it is necessary to organize the constituencies on numerical basis, the constituencies shall be organized chronologically as per the serial numbers of the members in the membership register of the co-operative society and where it is necessary to organize the Constituencies on territorial basis, the Constituencies shall be serially numbered by taking the geographically contiguous areas. According to the learned Advocate General, this amendment in no way contravenes any provision of the Act and only prescribes a method for effecting the reservation policy as provided in the Act.