JUDGMENT
R. C. Patnaik, J.
1. The petitioner in this writ application under Article 226 of the Constitution of India has assailed the election of the members of the committee of Bhawani-patna Central Co-operative Bank Limited (hereinafter called, ‘the Bank’) held on 28-7-1985.
2. The Bank, being a Central Co-operative Bank, has societies as its members (vide Section 16, Sub-section (1) read with Sub-section (3) of the Orissa Co-operative Societies Act). 239 primary societies are its members. As provided in Section 28, the management of the Bank, which is a society, vests in a committee constituted in accordance with the rules and its bye-laws (vide Section 28, Sub-section (1)). As provided in Sub-section (1-a) thereof, the term of office of the committee is for four years from the date of assumption of the office by the committee. The members of the Bank are divided in 12 constituencies. Each constituency is to elect a member — a Director to constitute the committee of the Bank. The Bank has two types of members –Societies, agricultural and non-agricultural. The petitioner was a candidate from a non-agricultural constituency.
On 26-5-1985, the Election Officer — opposite party No. 1 issued notice as per Annexure-1 notifying the 10 constituencies and the schedule of election. Schedule of the electoral processes according to the notification and the electoral roll constituency-wise was to be published on 1-7-1985. Electoral roll was to be inspected by the voters from 1-7-1985 to 6-7-1985. Objection to the voters’ list was to be made on 7-7-1985, and the voters’ list was to be finally published on that day too. 20-7-1985 was fixed for filing of nomination papers and 23-7-1985 for submission of objections to nominations filed and scrutiny. That day, the final list of valid nominations was also to be published. A candidate could withdraw his nomination on or before polling, which was to take place from 12 noon to 5 p.m. on 28-7-1985, where voting was necessary. Result of the election was to be declared around 5 p.m. that day. Opposite party No. 1 published a preliminary electoral roll on 1-7-1985 and the voters’ list was finalised on 7-7-1985. On 7-7-1985, he issued notice as per Annexure-3 to all societies requiring them to submit the names of the representatives along with the resolution of the society nominating the representatives by 19-7-1985. By letter dated 23-7-1985 (Annexure-4) issued to all societies affiliated to the Bank, the Election Officer extended the time for submission of nomination of representatives representing the societies in the general-body meeting of the Bank till the hour fixed for conducting the election on 28-7-1985. In the meanwhile, on 22-6-1985 vide Annexure-5 the petitioner brought to the notice of the Election Officer his failure to publish the names of the voters, i.e. the names of the representatives of the societies. His objection was, however, overruled by the Election Officer vide Order dated 23-7-1985 (Annexure-6). Opposite party No. 10 filed his nomination from the same constituency as the petitioner. The petitioner objected to the nomination of opposite party No. 10 on several grounds. His objections were, however, overruled. The petitioner has contended that if nomination of opposite party No. 10 had been rejected, he would have been declared uncontested from Constituency No. 11. He has alleged that nominations of opposite parties 4, 5, 6 and 9 were also invalid and their nominations were improperly and illegally accepted by the Election Officer.
3. The challenge to the election of members of the committee of the Bank has been assailed mainly on two grounds :
Firstly, extension of time by the Election Officer for submission of nomination of representatives by the co-operative societies till the hour for voting on 28-7-1985, was contrary to law and even the election programme as per Annexures-1 and 3, and secondly, the entire election process was vitiated for non-publication of the names of the representatives representing the societies who were really the electors and from amongst whom candidates were to be nominated under the schemes of the Act.
4. As provided in Section 16, whereas an individual can be a member of a primary cooperative society, no individual can be a member of an apex society or a Central Cooperative Bank. Only societies can be members of an apex society or a Central Cooperative Bank. The management of a society vests in a committee constituted in accordance with the provisions contained in the Act, the Rules framed under the Act and the Bye-laws. The eligibility conditions are contained in Sub-sections (3), (3-a), (4) and (4-a) of Section 28 which are as hereunder:
“28. Society to have a committee –
(3) No individual shall, whether by himself or as a representative of the society, be eligible for being chosen or for continuing as a member or President of the Committee of a Society, if he-
(a) is an applicant to be adjudicated as an insolvent or an undischarged insolvent; or
(b) has been sentenced for an offence involving moral turpitude such sentence not having been reversed; or
(c) is of unsound mind or is a deaf-mute or is suffering from leprosy; or
(d) is a paid employee of the society, the financing bank of the society or of any other society of which such society is the financing bank;
Provided that nothing in this clause shall debar –
(i) any person specifically permitted by the Registrar in that behalf from becoming the Secretary of the society; or
(ii) the paid employees of the societies from becoming members of the Committee of a society composed exclusively of such employees; or
(e) has failed to make payment of any amount due whether in cash or in kind to the society or to any other society on account of any loan or otherwise within three months from the date of notice by the society for payment of such dues; or
(f) is interested directly or indirectly in any contract made with the society or in any sale or purchase made by the society or in any contract or transactions of the society other than investment and borrowing involving financial interests, if the contract or transaction, sale or purchase be not complied; or
(g) has been expelled from a society under Section 21-A; or
(h) has been convicted on charge of mis-apropriation or defalcation of funds of any society or has been found liable in a surcharge proceeding until such conviction or liability is reversed; or
(i) has been dismissed, discharged or removed from the service of the Government, Public Sector Undertaking, Local Body, a Co-operative Society or any other body corporate as a result of disciplinary proceedings on charge of embezzlement, misappropriation or any other misconduct involving moral turpitude unless the order of such dismissal, discharge or removal has been reversed; or
(j) is holding any office of profit under the State or Central Government, or under any local authority or aided educational institution;
Provided that nothing in this clause shall debar any such person from becoming a Member or the President of the Committee of a society formed exclusively of such persons and a person nominated under Sub-section (1) of Section 31; or
(k) is debarred under the Representation of the People Act, 1951 to contest election.
(3-a) A representative of a society or a body corporate shall not be eligible for being chosen or for continuing as a member or President of the Committee of any other society in cases where the society or the body corporate which he represents –
(i) has failed to pay any amount due in cash or in kind to the society or any other society on account of any loan or otherwise within three months from the date of notice by such society for payment of such dues; or
(ii) ceases from the membership of the society; or
(iii) is ordered to be wound up or dissolved.
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(4) No individual shall whether by himself or as a representative of a society, be eligible to become a member or President of the Committee of any society assisted by the State or Central Government in any of the forms specified in Sub-section (1) of Section 31 or of any Central Society, Apex Society or Cooperative Bank, if he –
(a) has completed two consecutive terms as member of the committee; or
(b) has held such office for a total period of nine years, by the date of filing of his nomination.
(4-a) No individual shall at any time, whether by himself or as a representative of any society, hold office as a member of the Committee or more than one Primary Society, Central Society including Central Cooperative Bank or apex society.”
5. It is contended on behalf of the petitioner that having regard to the scheme of the Act and the provisions contained in the aforesaid provisions as regards an Apex Society or a Central Co-operative Bank, the representatives are the electors and the candidates but not the societies whom they represent. Hence, non-publication of the voters’ list containing the particulars of representatives of the societies, rendered the whole election process void. It is, on the other hand, contended by the counsel for the opposite parties that inasmuch as the societies are members of an Apex Society or a Central Co-operative Bank, the electors or candidates are the members of the societies but not their representatives and attention is invited to Rule 30-A, especially to Sub-rule (4)(a), which reads as under:
“30-A. Election of the Committee Members :–
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(4)(a) The Secretary or the Executive Officer of the society shall prepare constituency-wise, a list of members on the roll, with address, who are qualified in accordance with the provisions of the Act, Rules and bye-laws to participate in the election as it stood thirty days prior to the date fixed for election and publish copies of the list by affixing them to the Notice Board at the Head Office of the society and all its branches, three weeks prior to the date fixed for election.
(b) Objections if any concerning anything published in the list, may be heard by the Election Officer and decided within seven days of such publication and the final list shall be prepared and published.
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(5)(a) The Nomination of the candidate shall be made in the prescribed form as at Schedule D seven days prior to the date fixed for election. The form shall, on application be supplied to any member, free of cost by the society.
(b) Every nomination paper shall be signed by two members whose names are included in the final Electoral Roll published for the purpose. One of the members shall sign the form as proposer and the other as seconder for the nomination.
(c) The nomination paper shall contain a declaration signed by the candidate proposed for election to the effect that he is willing to stand for election.
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(6)(c) The Election Officer shall give all reasonable facilities to the contesting candidate to examine all the nomination papers and raise any objection regarding the validity of any candidate’s nomination within 3 days of the date fixed for filing of nomination papers and furnish proof therefor.
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(7) The list of valid nominations shall be published, in the Notice Board of the Society and any other place decided by the Election Officer immediately after scrutiny and at least 24 hours before the polling.
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6. The rival contentions require careful consideration. No individual can be a member of an Apex Society or a Central Cooperative Bank. Such Societies only can be members of an Apex Society or a Central Co-operative Bank. This position is indisputable. The question is : Who are members of the committee of an Apex Society or a Central Co-operative Bank ? — the societies or their representatives ? What light does the Act throw on this aspect?
7. There was some confusion prior to amendment of Sub-section (3) of Section 28 by the Amendment Act (Orissa Act 19 of 1983). Prior to the amendment, Sub-section (3) of Section 28 read as follows :
“28(3). No person shall be eligible for being
chosen or for continuing as a member or
President of the Committee of a society if
he– ……..”
(Underlining supplied)
After the amendment, the relevant portion of Sub-section (3) reads as under:
” (3) No individual shall, whether by him
self or as a representative of the society, be
eligible for being chosen or for continuing as a
member or President of the Committee of a
society, if he–……..
Similarly, Sub-section (4) reads as under:
“(4) No individual shall, whether by himself or as a representative of a society, be eligible to become a member or President of the Committee of any society assisted by the State or Central Government in any of the forms specified in Sub-section (1) of Section 31 or of any Central Society, Apex Society or Cooperative Bank, if he –……..
(Underlining supplied)
Sub-section (4-a), which is introduced by the Orissa Act 19 of 1983, reads as under:
“(4-a) No individual shall at any time, whether by himself or as a representative of any society, hold office as a member of the Committee of more than one Primary Society, Central Society including a Central Cooperative Bank or apex society.”
Sub-section (6) also throws further light which reads as follows :
“(6) Where any vacancy in the office of a member or the President of a Committee arises by reasons of death resignation or removal of any member or the President or by withdrawal of its representative by a member, society, such vacancy……..”
(Underlining supplied)
The provisions extracted above, especially those emphasized by underlining supplied, make it clear that it is the representative but not the society who is a member of the apex society or the Central Co-operative Bank.
8. Besides, some of the disqualifications, which render a candidate ineligible, can only attach to and be incurred by a living being but not by an inanimate and corporate body, for example, where the disqualification incurred is by reason of having been sentenced for an offence of moral turpitude and the sentence has not been reversed, or by the reason of an unsound mind or being deaf-mute or suffering from leprosy, or by reason of being a paid employee of a society, etc. (vide Clauses (b), (c) and (d) of Sub-section (3) of Section 28), or by reason of being a defaulter as provided in Clause (e) thereof, or by reason of conviction on the charge of misappropriation or defalcation of funds of any society, or by reason of having been found liable in a surcharge proceeding until such conviction or liability is reversed (vide Clause (h)), or by reason of dismissal, discharge or removal from Government service, Public Sector Undertaking, etc. as a result of disciplinary proceedings on Charge of embezzlement, misappropriation or any other misconduct involving moral turpitude (vide Clause (i)), or by reason of holding any office of profit under the State or Central Government, or under any local authority or aided educational institution (vide Clause (j)), or by reason of having been debarred under the Representation of the People Act, 1951 to contest the election (vide Clause (k)) of Sub-section (3) of Section 28).
Sub-section (3-a) thereof provides that a representative of a society would also be ineligible for being chosen or for continuing as a member of the committee of any society, if the society, which he represents, has incurred any of the disqualifications as specified in Clauses (i), (n) and (iii) of the said sub-section. Sub-section (6) clinches the matter by providing that the vacancy in the office of a member by withdrawal of its representative by a member-society, shall be filled up in the same manner as it was originally filled up. The scheme of Section 28, therefore, contemplates, provides for election of a representative of a society as a member of the committee and regulates his continuance as such member. A holding that the society is a member of the Committee would render many of the expressions used, especially those underlined in the various sub-sections, meaningless and nugatory and render many of the disqualifications prescribed otiose. That is why especially Sub-section (3-a), as inserted by Orissa Act 19 of 1983, provides that a representative would be ineligible for being chosen or for continuing as a member of the society, if the society, which he represents, has incurred any of the disqualifications specified in the three clauses thereof.
9. From the aforesaid, it therefore follows that representatives of societies are to be the members of the committee of an apex society or a Central Co-operative Bank. Since members are to be elected from amongst the electors, it necessarily follows that representatives are to be elected and the electoral roll should contain the names of the individuals representing the societies. No doubt, the provisions contained in Rule 30-A especially does not fit in with the scheme of Section 28, as discussed above, since it provides for constituency-wise list of members on the roll — members being the societies. If the expression ‘members’ is read as ‘representatives of societies’, there is no inconsistency. It is, however, desirable that the State Government, the rule-making authority, should amend Sub-rule (4-a) of Rule 30-A to bring it in accord with the scheme of Section 28. We have not adverted to the bye-laws since those have no statutory force. Though, no doubt, the bye-laws (Bye-law 30) provides for election of a society as member of the committee of a Central Co-operative Bank, having regard to our conclusions on the analysis of Section 28 as hereinbefore, the bye-law falls foul of the Act and to that extent it would be inconsistent. Hence, the bye-laws would also require amendment.
Sub-rule (5)(a) of Rule 30-A fits in with the scheme of Section 28. The prescribed nomination form requires the candidates to state the name of the candidate as well as the father or husband’s name. Unless the candidate is an animate human being, there would be no occasion for furnishing father’s or husband’s name. It, therefore, fortifies our view that it is the representative, who can become or continue as a member of the committee and he can be a candidate for the election, but not the society which he represents. In view of our aforesaid analysis of the provisions and the conclusions drawn, the entire electoral process stood vitiated as the electoral of the representatives of the societies had not been prepared and notified.
10. The election stood further vitiated on the other ground urged by the counsel for the petitioner. As per the election programme dated 7-7-1985 (Annexure-3), nomination of representatives was to be made by 19-7-1985 so that nominations could be filed by 20-7-1985 and objections thereto could be submitted and scrutiny of nominations be made on 23-7-1985 and final list could be published that day. The Election Officer, however, extended the time for nomination of representatives till the hour fixed for conducting the election on 28-7-1985 (vide Annexure-4). That is to say, nominations could be made even after submission of nominations and scrutiny thereof. It was conceded by the learned counsel for the State that it was impermissible on the part of the Election Officer to extend the time for filing of nomination till the hour fixed for election. But, this aspect is a secondary one, having regard to the conclusions reached by us on the first question. We, therefore, set aside the entire election process commencing from Annexure-1 and the election of the members of the committee of Bhawanipatna Central Co-operative Bank Ltd. and direct that election be held as early as possible in accordance with law, as enunciated by us above.
11. In the result, the writ application is allowed. But, in the circumstances, there would be no order as to costs.
D.P. Mohapatra, J.
12. I agree.