JUDGMENT
S.C. Mohapatra, J.
1. Controversy in this writ application under article 226 of the Constitution of India relates to the substitution of the members of the first board of directors of a society registered under the the Orissa Co-operative Societies Act, 1962 (for short ” the Act “).
2. Notice of admission was issued and with the consent of both parties, the writ application was fully heard on merits for final disposal.
3. In the writ application, the order of substitution of the members of the first committee was assailed on several grounds which were all refuted in the counter-affidavits. Assertions in the counter-affidavits were replied in the rejoinder affidavit. However, at the time of hearing, the challenge was confined only to two grounds. They are:
(a) absence of authority of the Deputy Registrar to revoke the nomination of all members nominated to the first committee of management by substituting new members; and
(b) violation of the principles of natural justice while revoking the nomination of a member.
4. The undisputed facts relevant for the purpose of decision of this case are as follows :
The Cuttack District Co-operative Union Ltd. (hereinafter referred to as ” the society “) was registered as a society under the Act in the year 1984 bearing registration No. 1888 of 1984. Bye-law 15(e) of the society provided for nomination of the first committee of the management by the Deputy Registrar. In exercise of the said power, the Deputy Registrar nominated the first committee of management consisting of eleven members including the petitioner in his order dated October 10, 1985, (annexure 1) for a term of four years. The petitioner was nominated as president of the committee. While the said committee was managing the affairs of the society, the Deputy Registrar revoked the nomination of the petitioner and other members by his order dated May 2, 1987 (annexure 2), and nominated eleven new members for a term of six months.
5. In the premises of the aforesaid facts, the validity and legality of the actions of the Deputy Registrar in constituting the first committee and revoking the nomination of the petitioner are to be examined.
6. The bye-laws of the society are in Oriya language. Neither party supplied a translation of the same. Bye-law 15(e) which is the source of the power of the Deputy Registrar is to be kept in mind. As translated by me, it reads as follows:
” 15. Committee of management.-The management of the District Co-operative Union shall vest in a committee, consisting of eleven members. The members thereof shall be as follows :
(a) Elected members…
(b) Nominated members…
(e) The first committee of management shall be nominated by the Deputy Registrar. At any time, the Deputy Registrar may revoke the nomination of any director and in his place may nominate a new director.”
7. The society carries on its business subject to the provisions in the Act and the Rules. Section 134 provides that to carry out the purposes of the Act, the State Government may make rules in which, amongst others, the matters in respect of which a society shall or may make bye-laws are to be provided. Rule 8 provides that every co-operative society shall, subject to the provisions of the Act and the rules made thereunder, make bye-laws in respect of various matters including qualification, mode of appointment and removal of directors. ” Director ” has been defined in Rule 2(g) to mean a member of a committee. ” Committee ” has been defined in Section 2(e) to mean the managing committee of a society by whatever name called.
8. As provided in Section 28(1), the management of a society vests in a committee constituted in accordance with the rules and its bye-laws. Rule 32 provides that within three months from the date of registration of a society, the organiser thereof is to convene the first general body meeting of all persons who had joined in the application for the registration of the society. In such a meeting, the committee is to be elected as provided in Section 32(1) and if no election is held, the preliminary committee which was elected by the applicants for registration is to be reconstituted. The term of the preliminary committee elected by the applicants is six months for the purpose of conducting the affairs of the society or for such further period as the Registrar may consider desirable as provided in Rule 31.
9. With these provisions, there would have been no scope for a provision like bye-law 15(e) in the bye-laws. However, by the Orissa Act 19 of 1983, Sub-section (1-c) was inserted. It reads as follows :
” (1-c) Notwithstanding anything contained in this Act, in the case of a society registered after the commencement of the Orissa Co-operative Societies (Amendment) Act, 19 of 1983, the Registrar may nominate the first committee of the society to manage the affairs of the society for a period of two years initially which may be extended by him from time to time so, however, that the aggregate period does not exceed four years .
Provided that where a society in which shares have been subscribed or liabilities by way of guarantee for borrowing exceeding fifty per centum of the working capital of the society has been undertaken by the Government, the term of the nominated Committee may further be extended by the State Government for such period or periods as may be considered expedient not exceeding two years in the aggregate. ”
Bye-law 15(e) is consistent with the provisions in Section 28(1-c).
10. A plain reading of Section 28(1-c) would clearly show that the Registrar who is defined in Section 2(i) to mean the Registrar including any person appointed to assist the Registrar when exercising all or any of the powers of the Registrar has power to nominate the first committee of the society for a period of two years initially. In view of this provision, the Deputy Registrar had no jurisdiction to nominate the first committee beyond four years initially in annexure 1. However, the exercise of power in excess would not invalidate annexure 1. The term is to be confined to two years only. In the absence of a provision like the Explanation to Section 28(l-a) deeming the date of assumption of office, the date of nomination shall be the starting point from which the period of two years is to computed. Thus, the first committee would have a term till October 10, 1987, the order being dated October 10, 1985.
11. Once the term of the first committee is two years, a question arises as to whether within the said two years, the Deputy Registrar could interfere with the committee. Under Rule 8, a society in its bye-laws, can provide for removal of members of a committee. Bye-law 15(e) being consistent with Section 28(l-c), the Deputy Registrar has power to remove a member of the society during the continuance of the term of the committee. Under Section 13(2) of the Orissa General Clauses Act, words in singular shall include plural and vice versa. When provision has been made in the bye-laws for revocation of the nomination of a member, the Deputy Registrar is competent to revoke the nomination of all the members or more than one of them and in their place nominate new members. The new members of the first committee are to act in respect of the balance period of the term and not more unless extended from time to time as provided in Section 28(1-c).
12. Under the dictionary meaning, the word ” nomination ” means ” the power of appointing to office “. The word ” appointment ” also includes nomination to an office. Nomination by the Registrar is, thus, appointment of the members thereof. The power of appointment includes the power of removal also under Section 17 of the Orissa General Clauses Act which provides that the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in
exercise of that power. Bye-law 15(e) providing for revocation of the nomination of a director is thus consistent with Section 28((1-c)) read with Section 17 of the Orissa General Clauses Act.
13. Examined in the light of the aforesaid discussion, the Deputy Registrar was within his power in removing all the members including the petitioner and nominating in their place other members. Annexure 2 passed on May 2, 1987, is to be confined to October 10, 1987, the period left out from the term of the first committee constituted on October 10, 1985. He could have extended the term subsequently as provided under Section 28(1-c). However, while making the appointment, he could not have stated in annexure 2 that the nomination is for a period of six months. This period is, therefore, to be confined to October 10, 1987, until the Deputy Registrar exercises the power by application of his mind to extend the term further as provided in Section 28(1-c) of the Act.
14. It is next to be considered whether the power to revoke the nomination of any director at any time as provided in bye-law 15(e) would require the observance of the principles of natural justice. Mr. R.K. Patra, the learned Additional Government Advocate (1), has relied upon a decision of this court in Padma Charan Samantasinghar v. Registrar of Co-operative Societies, AIR 1981 Orissa 150; ILR 1980 2 Cuttack 257, where it was held that for removal of an administrator appointed under Section 32(1)(b) of the Act, the rules of natural justice need not be complied with. For rendering such a decision, it was found that the administrator or administrators appointed under Section 32(1)(b) would not be a committee of management. It was further observed (at page 152 of AIR 1981 Orissa):
“In Section 32(1), a limit has been indicated of the tenure, namely, it should not exceed two years in the first instance and the said period may at the discretion of the Registrar be extended from time to time so, however, that the aggregate period does not exceed four years. It was open to the Registrar to indicate the tenure within the limit indicated by statute while constituting the Committee of Administrators, but no such specification had been made. It is, therefore, clear that by reconstituting the Committee of Administrators and dropping the petitioner from the Committee, the duration of office has not been curtailed and no vested right of the petitioner has been affected.”
15. The aforesaid observation clearly makes the decision distinguishable from the case of the petitioner. The first committee under Section 28(1-c) was to be nominated initially for a period of two years and not less. The language of Section 32(1) is that the Registrar may appoint for a period not exceeding two years as may be specified in the order which period may be extended from time to time so, however, that the aggregate period does
not exceed four years. In Section 28(1-c), the language is not “for a period not exceeding two years “. It is ” for a period of two years initially”. Thus, the initial tenure of the members is fixed. Besides, the first committee is a committee under the Act.
16. The president, as the petitioner is, holds an office. Section 9, Explanation I of the Civil Procedure Code provides that a suit in which the right to an office is contested is a suit of civil nature and Explanation II provides that it is immaterial whether or not any fees are attached to the office. Thus, right to office is a civil right. While rendering the decision in Padma Charan Samanthasinghar v. Registrar of Co-operative Societies, ILR 1980 2 Cut 257, the Division Bench relied on a decision of the Supreme Court in R.R. Verma v. Union of India, AIR 1980 SC 1461. In the quoted passage, while considering the applicability of the rules of natural justice, it was observed :
“…If they are to carry on their daily administration, they cannot be hidebound by the rules and restrictions of judicial procedure though of course they are bound to obey all the statutory requirements and also observe the principles of natural justice where rights of parties may be affected…”
17. In the present case, the civil right of the petitioner to continue as the president for two years from October 10, 1985, is affected and accordingly the rules of natural justice are to be observed. Non-compliance of the principle has vitiated annexure A-2 so far as the petitioner is concerned and accordingly, annexure 2 so far as it relates to the petitioner is liable to be quashed.
18. Non-observance of the principles of natural justice does not affect
the power of the Registrar, although such non-observance vitiates the
action. Where power is vested in an authority and it exercises that
power without observing the principles of natural justice, ipso facto the
order does not become invalid. The person who makes a grievance of
such an order is required to avoid the same. If the same is not avoided,
the principle of condonation or acquiescence would be applied and in
such cases or in cases of delay, the court should not interfere with the
order so far as the rights of persons who have not complained against
the same, in exercise of the power under article 226 of the Constitution,
are concerned. The only exception would be where a portion of the order,
when nullified, would affect the entire order. The petitioner is not
representative of other members whose rights have already been affected.
He has approached this court for protection of his own rights. In that
view of the matter, the entire annexure 2 is not to be quashed. It is
quashed in respect of the petitioner only.
19. In the result, the writ application is allowed. There shall be no order as to costs. H.L. Agrawal, C.J. 20. I agree.