JUDGMENT
Susanta Chatterji, J.
1. All the points of law are always available to the Bar to highlight the same, but it is for the Bench to appreciate the same in the proper perspective.
2. A short point, yet quite interesting, is raised in the instant case. The writ petitioners, namely, Rabindra Kumar Das and Sri Ashok Kumar Sahoo, have filed the present writ petition against the State of Orissa and Ors. asking for the following reliefs :
“…….issue Rule Nisi calling upon the opposite parties to show cause as to why the reservation made by the Election Officer de hors the Rules vide Annexure-2 shall not be struck down and the constituencies shall not be carved out and reserved as per the recommendation made by the committee and if the opposite parties fail to show cause or show insufficient cause to make the said rule absolute by issuance of a writ of mandamus or any other writ/writs, order/orders, direction/directions as this Hon’ble Court deems just and proper in the facts and circumstances of this case……”
3. Petitioner No. 1, an employee is at present holding the post of the President of United Puri Nimapara Central Co-operative Bank, Puri and petitioner No. 2 is a share-holder of the said Bank. It is placed on record that United Puri Nimapara Central Bank. Ltd., Puri has been established by the share-holders as long back as in the year 1 956. During the course of time it has enhanced its scope and area of operation throughout Puri district and there is remarkable increase of its Members. It is contended that for electing the members of the Committee of the Bank elections are held in every four years. As per Rules, an Election Officer is appointed for smooth conduct of the election. As per Section 28 of the Orissa Co-operative Societies Act the total area of operation of the Bank has been divided into different constituencies and for effective representation of the Scheduled Caste. Scheduled Tribe and other Backward classes, there are reservations of the constituencies. Sub-rule (3) of Rule 6 of the Orissa Co-operative Society Election Rules stipulates that the members of the Society may be organised into different constituencies on such territorial classes or other rational basis, as may be determined by the Committee having regard to the provisions of Sub-section (2)(e)(i) of the Act. Section 18(2)(i) of the Act provides that three constituencies each shall be kept reserved for SC/ST candidates out of the total Constituencies. Four Constituencies should be reserved for backward classes and five for other category of members. Out of the reserved Constituencies, meant for SC/ST and other backward classes, there shall be a further reservation of one Constituency each for women members. Out of five Constituencies meant for other reserved categories, there shall be reservation of two Constituencies for women members. Accordingly prior to such Election Notification the Committee of the Bank taking into consideration of feasibility, territorial convenience and other rational basis reserved Constituencies for the aforesaid categories of candidates in consonance with the mandates of the Act. The grievance is that the petitioners were surprised to find the election notification for the aforesaid Bank issued by the Election Officer on 21.11.1 997 which was published in the daily “SAMBAD” dated 24.1 1.1997 indicating, inter alia, that the Committee took into consideration different aspects and on a rational basis had reserved the Constituencies for different reserved category but yet the Election Officer whimsically without any rational reasoning had changed the decision of the Committee and reserved different Constituencies on his own accord by giving a go-by to the recommendation. The action of the Election Officer was arbitrary, illegal, not sanctioned by law and was based on rational consideration. Developing all these allegations in greater details the petitioners have come to the writ Court seeking the reliefs as indicated above.
4. At the time of entertaining the writ petition on 23.12.1997 attention of the Court was drawn to Rule 6(3) of the Orissa Co-operative Societies Election Rules, 1992 and the decision reported in AIR 1994 Ori. I (Kailash v. Secretary). However, the matter was entertained to resolve the dispute and leave was granted to the opposite parties to file counter affidavit. The counter affidavit has been filed. The main point canvassed before us as to whether the writ petition is maintainable and as to whether the petitioners have any alternative remedy as contained in the Act itself and it would not be efficacious for the writ Court to entertain the dispute and resolve the same.
5. Mr. Naidu, learned counsel for the petitioners has very strongly argued that the Court may be pleased to appreciate the scope of the writ petition as well as the prayer and/or relief sought for. According to him there must be two aspects. First, there must be some wrong done and/or caused to have been done to affect the rights of the petitioners vis-a-vis as to whether there is any remedy available under the Act and/or under the Rule to seek alternative forum to obtain relief. If the wrong done is pointed out and the petitioners are found to be remedyless under the Act and the Rules then the doors of the Writ Court should not be closed and instead the Writ Courtwould consider all the aspects in greater dimension to provide remedy to every wrong. To sustain his argument Mr. Naidu has pointed out that the main relief sought by the petitioners is that Annexure-2 should be struck down inasmuch as the Election Officer having taken such steps as per the said Annexure-2 de hors the Rules the same should be struck down and the Constituencies should be carved out and reserved as per the recommendation made by the Committee. It is further urged that when recommendation was made by the Committee regarding reservation of the Constituencies, carving out of the Constituencies by the Election Officer a wrong has been done by the Election Officer de hors the Rule and therefore, it is to be seen whether it has to be remedied under the Act and the Rules. It is emphasised that the wrong done by the Election Officer has got nothing to do with the election process and as such Section 67(B) will not stand as a bar. For better appreciation we may look at the amended provisions of Section 67(B) of the Orissa Co-operative Societies Act, 1962. In order to avoid any confusion and for better appreciation as also by way of ready reference Section 67(B) is quoted hereinbelow :
“67.-B. Powers of the Tribunal :
(l)(i) Notwithstanding anything contained in any law for the time being in force, any dispute arising in connection with the election of any Office-bearer of a Society, or the disciplinary action taken by a society or its Committee against any paid servant of the Society who is not a workman within the meaning of Clause (s) of Sec. 2 of the Industrial Disputes Act, 1947 shall be referred to the Tribunal in the manner and within the period prescribed in that behalf.
(ii) If any question arises as to whether a dispute referred to the Tribunal under Clause (i) is a dispute within the meaning of that clause, the decision of the Tribunal thereon shall be final and shall not be called in question in any Court.
(iii) All disputes arising in connection with the election of any Office-bearer of a Society or the disciplinary action taken by the Society, or with whatever authority under this Act, Rules or any Regulations framed under this Act pending as on the date of commencement of the Orissa Co-operative Societies (amendment) Act, 1991, shall stand transferred to the Tribunal which shall dispose of the same in accordance with law.
(2) The Tribunal may, pending the decision of the dispute, make such interlocutory orders as it may deem necessary in the interest of justice.
(3) The Tribunal may call for and examine records of proceeding in which appeal lies to it, but appeal has not been filed, for the purpose of satisfying itself as to the legality or propriety of any order passed or decision made therein and if any such case it appears to the Tribunal that any order or decision should be revised, modified or annulled, it may make such order as it thinks fit, after affording to the person likely to be affected adversely by such order an opportunity of being heard.
(4) While deciding appeals, the Tribunal may exercise all the powers conferred upon the appellate Court by Order XL1 of the First Schedule of the Code of Civil Procedure, 5 of 1908″.
It starts with non-obstante clause :
“All disputes arising in connection with the election of any Office-bearer of a Society or the disciplinary action taken by Society or its Committee against any paid servant of the Society”.
6. Mr. Naidu argues, inter alia, that Section 67-B with all its letter and intent does not fulfil the requirement so far as the relief sought for by the petitioners that the dispute as raised by the petitioners is not comprehensively covered by Section 67-B. He has tried to distinguish the decision reported in AIR 1994 Ori. 1 (Kailash Chandra Dandpat and Ors. etc. v. Secretary, Birabhadraswar Weavers’ Co-operative Society Ltd. and others) pointing out that a right to election is not a civil right, but is a right granted by a statute and hence where the statute itself provides the forum to adjudicate a question connected with it, infringement of the right granted can be assailed only in the designated forum and not by petitions invoking jurisdiction of the High Court under Articles 226 and 227 of the Constitution, though of course in exceptional or extraordinary circumstances this Court can be approached. Improper acceptance or rejection of nomination papers in individual cases would not normally be such circumstances. Very elaborately the questions have been answered as to whether question regarding illegality in preparation of electoral rolls and clubbing of constituencies is a dispute under Explanation IV of Section 68 and whether the same can be challenged under the Act itself when election is over.
7. Mr. Naidu further submits that if we go by the ratio of the decision reported in AIR 1994 Ori. 1 (supra), the petitioners cannot ask for any relief to maintain the writ petition. As found in AIR 1994 Ori. 1 (supra) clubbing up constituencies and/or any wrong done or any steps taken incidental thereto are to be construed as starting of the election process, and those are to be covered, even though at the point of time the case of Kailash Chandra Dandpat (supra) was decided. Section 68-B did not come into operation. The position has improved further by making the legislation as per Section 67-B which has already been quoted.
8. In order to obviate the situation Mr. Naidu has relied upon the decision reported in AIR 1986 Supreme Court 103 (Indrajit Barua and Ors. etc. v. Election Commission of India and others). The head note (c) of the said decision is as to Representation of People Act (43 of 1950), Section 21(2) proviso-Election-Challenge as to on ground of defective electoral roll. Our attention has been drawn to paragraph 12 of the decision which runs as follows :
“We are not prepared to take the view that preparation of electoral rolls is also a process of election. We find support for our view from the observation of Chandrae hud, C.J. in Laskhsmi Charan Sen’s case (AIR 1985 SC 1233) (supra) that “it may be difficult, consistently with that view, to hold that preparation and revision of electoral roll is a part of ‘election’ within the meaning of Art. 329(b)”. In a suitable case challenge to the electoral roll for not complying with the requirements of the law may be entertained subject to the rule indicated in Ponnuswami’s case (AIR 1952 SC 64) (supra). But the election of a candidate is not open to challenge on the score of the electoral roll being defective. Holding the election to the Legislature and holding them according to law are both matters of paramount importance. Such elections have to be held also in accordance with a time bound programme contemplated in the Constitution and the Act. The proviso added in Sec. 22(2), 21(2) of the Act of 1950 is intended to extend cover to the electoral rolls in eventualities which otherwise might have interfered with the smooth working of the programme. These are the reasons for which we came to the conclusion that the electoral roll of 1979 had not been vitiated and was not open to be attacked as invalid.”
9. Mr. Naidu has argued that in AIR 1986 SC 103 (supra) the Apex Court did not interfere with the result of the election in view of the proviso to Section 21 but the observation made therein was that the preparation of the electoral roll is not a process of election. Any observation of the apex Court should not be lost sight of and this observation and/or the decision of the Apex Court was not brought to the notice of this Court while the case reported in AIR 1994 Ori. 1 (supra) was decided. If preparation of the electoral roll is not to be construed as starting of the election process then AIR 1994 Ori. I (supra) and/or Section 67-B would not stand on the way of the petitioners to ask for the relief in the manner as done.
10. He has further developed his argument by drawing attention of the Court to the decision reported in AIR 1980 SC 1612 (Bar Council of Delhi and another, etc. etc. v. Surjeet Singh and others, etc. etc.). Attention of the Court was also drawn to head note (C) in paragraph 15 of the judgment. It indicates, inter alia, that the electoral roll was prepared on the basis of a rule which had been found to be void and ultra vires. That being so, even though the contesting respondents came to challenge the election after it was held they could do so because of the gravity of the infraction of the law in the preparation of the electoral roll.
11. Attention of the Court was drawn to the observation in paragraphs 12 and 13 of the aforesaid decision as to election held on the basis of void and ultra vires rules relating to preparation of electoral roll and it was found that the petition was maintainable and remedy provided by Rule 34(8) of Bar Council of Delhi Election Rules, 1968 was no remedy at all.
12. Attention of the Court was drawn to another Full Bench decision reported in AIR 1972 Kerala 5 (Amarvila Krishnan Nair v. The Election Commissioner of India, New Delhi and others). The main thrust of the point as has been observed by Raman Nayen C.J. which was majority view was that the preparation of electoral rolls was not a stage of an election process, but something anterior to the election. The election process commences only with the notification Under Section 15 of the Representation of People Act, 1951 and ends with the declaration of the result of the election. Therefore the bar under Clause (b) of Article 329 does not affect the jurisdiction of High Court under Article 226 of the Constitution to give a declaration that the electoral rolls have been prepared in substantial violation of the mandatory provisions of the Representation of People Act, 1950 and to give appropriate consequential direction. Much emphasis is laid on the preparation of electoral roll as being understood, interpreted and appreciated in the aforesaid decision. Taking note of the observation made in the aforesaid decisions and also relying on and referring to other decisions this Court in a case reported in 79 (1995) CLT 275 (Gangadhar Mohapatra etc. etc. v. State of Orissa etc. etc.) found that the electoral rolls prepared without following the provisions of the Election Rules were invalid and cannot be the basis of a fair election. The Division Bench also relied upon AIR 1978 SC 851 (Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and others) as also a Full Bench decision of the Kerala High Court in AIR 1972 Kerala 5 (Amarvila Krishnan Nair v. The Election Commissioner of India, New Delhi and others).
13. Mr. Naidu has summarised his argument by drawing attention of the Court to relevant facts and issue involved and regard being had to the decisions of the Apex Court and by distinguishing the provisions of the Orissa Co-operative Societies Act as well as Orissa Co-operative Societies Rules, 1992 and distinguishing AIR 1994 Ori. 1 (supra) that the acts done and/or caused to have been done by the Election Officer in issuing Annexure-2 cannot be sustained and having no remedy available or having no other alternative forum the Writ Court has been approached for efficacious remedy. The case has merit of its own as submitted. However, in his usual fairness Mr. Naidu has submitted that in the meantime the election has taken place. He is not going to upset the election but he is arguing for the consequential effect. All that he asks for that the Court may be pleased to consider that the acts done by the Election Officer are de hors the Rules and the provisions and the wrong must be found to have crept in and if any irregularity has been caused it should neither be repeated and proper step to be taken to take note of the same in order to avoid serious consequences. This Court is not obviously going to answer any academical question. It has to be found whether, in fact, there is anything wrong and as to whether the petitioner is remedyless or the situation is such that the relief sought for can be granted by effective adjudication.
14. Mr. P. K. Ray, learned Addl. Govt. Advocate appearing for the State has made a lengthy argument. He has taken this Court through the provisions of the Act and the Rules, namely, the Orissa Co-operative Societies Act, 1962 as well as the Orissa Co-operative Societies Rules, 1965. He has submitted that every case and/or decision must be appreciated with regard to its distinguishing facts and circumstances. Any observation out of the context and even any decision of the Apex Court may not have any impact and should not be taken into consideration to grant remedies when the facts are not warranted and the situation does not permit. The decision in AIR 1980 Supreme Court 1612 (supra) and in AIR 1986 Supreme Court 103 (supra) are with regard to the provisions of the Representation of People Act. Their Lordships have considered AIR 1986 SC 103 (supra) in the said context and the proviso was taken note of as to preparation of electoral roll within the scope of the Representation of the People Act. But the preparation of electoral roll within the scope of Orissa Co-operative Societies Act, 1 962 should not be lost sight of if preparation of electoral roll under the Orissa Co-operative Societies Act and Rule 92 is looked into in its proper perspective, it must be understood that the preparation of electoral roll also comes within the comprehensive ambit of Election process. Once it is construed as an election process, the only remedy is to challenge the same before the appropriate forum other than writ Court as provided by Section 67-B.
15. Mr. P. Acharya for the intervenor has argued by drawing attention of the Court to Rule 6(4) and (5) of the Orissa Co-operative Societies (Election) Rules, 1992. He submits how the electoral roll has to be made as provided in Rule 6 itself. It starts with the word that the Chief Executive of the Society shall prepare the provisional electoral roll for each constituency incorporating therein the materials indicated. Most important is Rule 6(3) which indicates that the membership of a Society may be organised into different constituencies on such territorial class or other rational basis, as may be determined by the Committee having regard to the provisions of the Act, the Rules and the bye-laws, if any, in that regard and where a specified number of representatives from any class, like and women, Scheduled Castes, Scheduled Tribes, small farmers and landless cultivators or others are required to be elected, there shall be separate constituencies for each such class.
16. Mr. Acharya has pointed out further that Sub-rule (4) and Sub-rule (5) of Rule 6 are equally important. Sub-rule (4) provides that the Chief Executive shall furnish authenticated copies of the provisional electoral rolls to the Election Officer at least fortf days prior to the date fixed for election and the Election Officer or any person authorised by him in that behalf shall publish the same affixing it on the notice boards of the head office of the Society and its branches. if any, thirty days prior to the date of election. The question of committee’s recommendation is to be understood in the context of Sub-rule (4) of Rule 6.
17. Needless to observe that the definition under Rule 2 (c) indicates thaf’Constituency” means a constituency organised in accordance with Sub-rule (3) of Rule 6. If this definition of Clause (c) of Rule 2 is kept in mind and thereafter we read Rule 6, Sub-rules (3)(4) and (5), the answer will be clear that the objection to the provisional electoral rolls published under Sub-rule (4) shall be filed before the Election Officer in writing showing therein details of the objections and full particulars of the objectors within four days from the date of publication of the said electoral rolls and the same shall be heard and decided by the Election Officer after such enquiry as he may deem necessary. The Election Officer shall correct the electoral roll after deciding all claims and objections and finalise the same within three days from the last date of receipt of objections.
18. Our attention has been drawn to Section 28-B of the Orissa Co-operative Societies Act, 1962 itself that notwithstanding anything contained in this Act and the Rules, election process of a Society, once started, shall not be held up and no matter relating to election of the President or members of the Committee shall be called in question before any authority under this Act until the declaration of the result of such election. If we read Section 28-B together with Rule 6(3)(4) and (5), we do not find that those are contradictory and repugnant to Section 28-B. The election process as in the Representation of People Act is not the same as we understand reading the definition of Rule 2 of the Orissa Co-operative Societies Rules, 1 992 and thereafter Sub- rules (3)(4) and (5) of Rule 6. If the Executive Officer has filed the electoral roll in terms of Sub-rule (3) of Rule 6, there is scope for raising objection before the Election officer. The petitioners have never raised any objection before the Election Officer and if anything is done thereafter, the election process starts and then there should be ho other remedy under the Act except after election as would be answered by Section 67-B.
19. Patiently, we have heard the learned lawyers of the respective parties. We have the occasion to examine the Scheme of the Orissa Co-operative Societies Act, 1962, the Orissa Co-operative So’cieties Rules, 1965 and the Rules of 1992. Making harmonious reading of the provisions of the Act and the Rules with regard to the point as raised by Mr. Naidu as to Annexure-2 obviating the recommendation of the Committee. We do not find that once having filed objection before the Election Officer within the scope of Sub-rule (5) of Rule 6, the petitioners can come before this Court after Election Officer to say that they are remedyless and the writ Court will quash Annexure-2 for any academic purpose. If Annexure-2 has vitiated the election and the election has been over, the remedy available is Under Section 67-B and objection, if any, may be filed which can be dealt with by the proper forum. We have appreciated all the points of law raised and we have tried to understand the provisions of the Act and the Rules as also several decisions of this Court, of different other High Courts and also the Apex Court. The points raised by Mr. Naidu have been squarely answered by us and we find that although wrong is there and without remedy, this Court is not the proper forum where the petitioners can ventilate their grievance. We observe that if any wrong has been committed the petitioners may seek redress in the proper forum in the manner as law provides. The writ petition is dismissed. There would be no order as to costs.
D.M. Patnaik, J.
I agree.