SRI NARENDRA PRADHAN Vs. STATE COOPERATIVE ELECTION COMMISSION

JUDGEMENT

(1.) Filing the writ petition, the petitioner challenged the impugned order dated 18.2.2015 passed by the opposite party no.1 under Annexure- 7 along with the consequential impugned Election Notice dated 22.2.2015 under Annexure-8. Petitioner has also the prayers as to why the opposite parties shall not be directed to permit the petitioner to discharge his duties as the President of the Jhiliminda Service Cooperative Society Limited from the date of declaration of the election, as to why the opposite parties shall not be refrained from taking any action against the petitioner from discharging his duties as the President of Jhiliminda Service Cooperative Society Limited. In sum and substance, the petitioner has assailed the orders vide Annexures- 7 and 8 and sought for direction against the opposite parties allowing the petitioner to function as the President of Jhiliminda Service Cooperative Society Limited being validly and lawfully elected.

(2.) Assailing the impugned order, referring to the pleadings in the writ petition, Sri Pitambar Acharya, learned Senior Counsel appearing for the petitioner contended that Jhiliminda Service Cooperative Society Limited is a Primary Service Cooperative Society Limited within the meaning of Clause(c-2) of Section 2 of the O.C.S. Act, 1962 being managed by the Elected Board of Management. In order to get an Elected Board of Management, Election Officer-opposite party no.4 vide notice dated 27.1.1915 notified election programme concerning the society. As per the notice, polling of votes and counting of votes were fixed to 16.2.2015 commencing from 10 A.M. to 12 P.M. Following the said notice being published, three candidates including the petitioner filed nomination for the post of President of the Society. Poll process started as per the programme fixed vide Annexure-1 smoothly at 10 A.M. and it is at 11.45 A.M. when the poll process was on, one of the Presidential candidates, namely, Bibhudutta Pradhan rushed into the polling booth and filed a written complaint before the Election Officer along with six other Directors, who claimed to be present outside the office premises alleging that they are being prevented from casting their votes by the public standing outside the polling booth, as available at Annexure-9. This fact was brought to the notice of the Deputy Registrar, Cooperative Societies, Bargarh division to avoid any untoward situation. The Polling Officer in the meantime after completion of voting time and after complying necessary formalities as scheduled, counted the votes and declared the result of the said election wherein it was found that the present petitioner has got seven votes whereas the complainant Bibhudutta Pradhan got only one vote and the third candidate acquired no votes out of total eight number of votes. Deputy Registrar, Cooperative Societies-cum-District Election Officer on the next date of voting vide Office Letter No.571 dated 17.2.2015 brought the entire facts to the notice of the opposite party no.1 for taking necessary action. It is next pleaded that while the matter stood thus, the State Cooperative Election Officer, Orissa issued an order on 18.2.2015 wherein the Commissioner looking to the complain made in the letters received at his hand and for the reason that an F.I.R. being registered on the self same allegation, in exercise of his power under Sub-Rule 1 of 36 of the Orissa Cooperative Societies (Election to the Committees) Rule, 1992 held the election to have been vitiated and thereby declared the election of the President as void and further directed for going for a fresh poll for the election of the President thereby further directing the Election Officer to fix up another date with due intimation to all concerned. By Annexure-8, the Election Officer issued a notice for fresh polling for the Presidential post to be taken place on 1.3.2015. Challenging the impugned order under Annexures-7 and 8, Sri Pitambar Acharya, learned Senior Counsel contended that as far as election of the President and Members of the Committee of Management is concerned, the provisions contained in the Orissa Cooperative Societies (Election to the Committees) Rule, 1992 are required to be followed strictly. Further referring to Rule 36 of the Orissa Cooperative Societies (Election to the Committees) Rule, 1992, Sri Acharya, learned Senior Counsel contended that even assuming that there is a complain preventing some of the candidates from casting their votes and even further assuming that there is also a F.I.R. involving the said allegation, but mere allegations did not make the case fall within the trap of Rule 36 of the Orissa Cooperative Societies (Election to the Committees) Rule, 1992. There is no application of the provisions contained in Orissa Cooperative Societies (Election to the Committees) Rule, 2014 by way of amendment even otherwise also. It was only open to raise an election dispute looking to the development that not only the election process had already commenced but the result of the election was also declared. Consequently, Sri Acharya, learned Senior Counsel contended that the impugned orders are not only contrary to the provisions of the Orissa Cooperative Societies (Election to the Committees) Rule, 1992 but also as a result of high handed actions of the State Cooperative Election Commission with clear intention to show undue favour to the complainant. It is also contended that even assuming that there was a complaint and resulting thereby there is an F.I.R. looking to the allegation in complaint, it was either required to be looked into after affording opportunity of hearing to the petitioner or should have been an issue involving an election dispute being raised by the complainant under the Election Rules and so far as criminal complaint is concerned, since it was only at the complaint stage it had also no bearing in the decision process and consequently it is claimed that there has been wrong handling of the issue by non else than a person, a State Cooperative Election Commission. Referring to a decision in the case of Mohinder Singh Gill and another v. The Chief Election commissioner, New Delhi and others, (1978) 1 Supreme Court Cases 405, particularly referring to paragraphs 66, 74, 77 and 78, learned Senior Counsel contended that natural justice is the prime requirement in such cases and no decision of this nature should have been taken without following natural justice being afforded to the party likely to be affected. It is next contended that prime duty of the Election Commissioner here was that before proceeding to such issues, competent authority should have clearly investigated as to whether such allegation comes within the purview of Rule 36 of the Odisha Co-operative Societies (Election to the Committees) Rules, 1965 or not. It is on these premises, Sri Acharya requested for interfering in the impugned orders and setting aside the orders under Annexures-7 and 8 and thereby further directing the opposite parties to allow the petitioner to function as the President of the Society in question.

(3.) By filing a counter, opposite party no.2 through Sri K.K.Mishra, learned Additional Government Advocate while justifying the impugned orders contended that the writ petition is not maintainable both in fact and law. It is next contended that while the polling was in process on 16.2.2015 at 11.45 A.M. one of the candidates, namely, Bibhudutta Pradhan filed a written complaint available at Annexure-3 to the writ petition before the opposite party no.4 stating that he and other six signatories, all of them voters in the poll, reached the polling station in a vehicle at 10.30 A.M. but the public present outside the polling station did not allow them to enter the polling station even in presence of the police personnels as a result of which the said six voters could not cast their votes. After closure of the polling hour, opposite party no.4 informed the matter over cell phone to the opposite party no.2 and the opposite party no.4 was instructed over phone not to go for counting. On these premises, the matter being referred to opposite party no.1 for necessary decision but however, being pressurized by the public and the other two candidates, the opposite party no.4 counted the ballots, the Election Officer never declared the result and on the other hand submitted a report available at Annexure-4, which was received by the opposite party no.2 on 17.2.2015. In the meantime, at 12.30 P.M. on 16.2.2015, the complainant along with six others lodged an F.I.R. appearing at Annexure-A/2 in the Attabira Police Station for investigation and appropriate action of the police authority. It is contended by the opposite party no.2 that the State Cooperative Election Commission after consideration of the report at Annexures-3, 4 and 5 and the F.I.R./involved therein being satisfied that the election is vitiated under Sub-Rule 1 of the Rule 36 of the Odisha Cooperative Societies (Election to the Committees) Rule, 1992 declared the poll held on 16.2.2015 as void and by the impugned order under Annexure-7 while declaring the poll as void issued further direction for fresh poll involving the Society. In the above premises, it is therefore, contended that there is no illegality either in the order under Annexure-7 or in the order at Annexure-8, which being justified, the writ petition should be dismissed