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Narasingha Charan Acharya Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Constitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 1848 of 1983
Judge
Reported inAIR1985Ori62
ActsOrissa Co-operative Societies Act, 1963 - Sections 28(4) and 28(5); Orissa Co-operative Societies (Amendment) Act, 1983; Constitution of India - Article 226
AppellantNarasingha Charan Acharya
RespondentState of Orissa
Appellant AdvocateP.K. Dhal, ;D. Nayak and ;R.K. Patnaik, Advs.
Respondent AdvocateR.K. Patra, Addl. Govt. Adv. (for Nos. 1 to 5) and ;M.K. Mallik, Adv. (for No. 6)
DispositionWrit application allowed
Excerpt:
.....1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is contended that the petitioner has preferred an appeal against the impugned order and he can as well raise a dispute under section 68 of the act and this is not a fit case where this court should, in exercise of its extraordinary jurisdiction, interfere with the impugned order......other manner not permitted thereunder, the ragistrar may, by order in writing, after giving such member. president or officer a reasonable opportunity of being heard, remove him from his office and thereupon he shall be deemed to have vacated his office with effect from the date of the said order'. this sub-section provided for removal of a member or president who had incurred any of the disqualifications mentioned in sub-section (3). it had not been provided therein that a member or president could be removed if he had incurred a disqualification mentioned in sub-section (4) (a) or (b) of section 28 of the act sub-section (5) of section 28 of the act has now been amended and by the amendment act in clauses (a) of sub-section (5), for the words, figures and brackets 'disqualifications.....
Judgment:

Behera, J.

1. Challenge in this writ application under Articles 226 and 227 of the Constitution is to the order of removal of the petitioner, as per Annexure-7, by the Assistant Director of Fisheries Assistant Registrar, Co operative Societies, Cuttack, on the ground that while functioning as the President of the Pattamundai Primary Fishermen Co-operative Society (for short, the 'Society') from 12-11-1973, his continuance beyond 13-11-1982 after having completed a period of nine years was illegal in view of the provision contained in Section 28(4) (b), Orissa Cooperative Societies Act, 1962 (the Act, for short). As averred in the writ application and the counter affidavits put in by the opposite parties the petitioner was first elected to be the President of the Society in 1975 and for the second term in 1980 and had been continuing as such till the time of his removal as per Annexure-7 D/- 17-8-1983. As submitted at the Bar, the petitioner had also been functioning as the President of the Primary Society constituted in November, 1973. Thus, by the time of his removal in August, 1983, the petitioner had completed a period of more than nine years while functioning as the President of the Society, but not by the date of his nomination in 1980.

2. Mr. Nayak, appearing for the petitioner, has contended that Section 28 (4) (b) of the Act refers to a total period of nine years by the date of filing of the nomination and not beyond that time and in the absence of any provision in the Act for removal of any office-bearer of the Society, after his valid election having qualified as an eligible candidate by the date of filing of his nomination, on this ground, the impugned order has been passed without jurisdiction and without even prior notice to show cause or an opportunity of being heard and therefore, it is to be quashed The learned Additional Government Advocate, appearing on behalf of the opposite parties 1 to 5 and Mr. Malik, appearing for the opposite party 6, have contended that the impugned order is not a punitive one, but is a communication made to the petitioner regarding his ineligibility to continue in office beyond a total period of nine years and this order is legal and valid It has also been submitted by them that besides this disqualification, the petitioner has completed two consecutive terms as a member of the Committee and is not entitled to continue in office as the President of the Society in terms of Section 28 (4) (a) of the Act. It is contended that the petitioner has preferred an appeal against the impugned order and he can as well raise a dispute under Section 68 of the Act and this is not a fit case where this Court should, in exercise of its extraordinary jurisdiction, interfere with the impugned order.

3. Section 28 (4) of the Act reads:

'(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 (i) of Section 31 or of any Central Society, Apex Society or Co-operative Bank if be(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'.

This sub-section provides, in clear terms, that the disqualification mentioned in clauses (a) and (b) are in respect of the eligibility to become a member or President of any committee of any society. The petitioner has not been removed because he has completed two consecutive terms as a member of the committee. We need not, therefore, go into this question raised by the learned counsel for the opposite parties. If, as submitted before us by the learned counsel for the petitioner, the impugned order has been passed illegally and without jurisdiction and thus is a nullity, this Court, while exercising its jurisdiction under Articles 226 and 227 of the Constitution, can quash the order in the circumstances of the case.

4. It is admiral on all hands that by the time of his nomination the petitioner had not held the office of the President of the Society for a total period of nine years as he started functioning as such from 12-11-1973 and his nomination had been filed in 1980. The stand taken by the opposite parties however, is that on the completion of a total period of nine years in office, the petitioner had incurred the disqualification to hold and continue in office as the President of the Society and therefore, the impugned order removing him from the office cannot be called in questioa. In our view, this contention is devoid of any substance. There was no provision in the Act, prior to the amendments effected by the Orissa Co-operative Societies (Amendment) Act, 1983 (Orissa Act 219 of 1983) (for short, 'the Amendment Act'), to be referred to hereinafter, for removal of an office-bearer who had incurred any disqualification under Section 28(4) of the Act

5. Our attention has been invited by the learned counsel for the opposite parties to Sub-section (5) of Section 28 of the Act which provided for removal of the President from his office and this sub-section, prior to the amendment effected to it by the Amendment Act would read:

'If in the opinion of the Registrar : --

(a) a member or president of a Committee of a society has incurred any of the disqualifications mentioned in Sub-section (3), or

(b) any officer of a society who having the power, by or under the bye-laws of the society, to remain in custody of any cash belonging to the society, keeps in his custody, without reasonable cause, any such money in excess of the permissible limit beyond the period allowed under such bye-laws or in any other manner not permitted thereunder, the Ragistrar may, by order in writing, after giving such member. President or officer a reasonable opportunity of being heard, remove him from his office and thereupon he shall be deemed to have vacated his office with effect from the date of the said order'.

This sub-section provided for removal of a member or president who had incurred any of the disqualifications mentioned in Sub-section (3). It had not been provided therein that a member or President could be removed if he had incurred a disqualification mentioned in Sub-section (4) (a) or (b) of Section 28 of the Act Sub-section (5) of Section 28 of the Act has now been amended and by the Amendment Act in Clauses (a) of Sub-section (5), for the words, figures and brackets 'disqualifications mentioned in Sub-section (3) 'the words, figures and brackets 'disqualifications mentioned in Sub-sections (3), (3-a), (4) and (4-a)' have been substituted. Thus Sub-section (5) now provides for removal of a member or President from his office if he has incurred any of the disqualifications mentioned in Sub-section (4). This amendment has been provided in Section 9 of the Amendment Act Section 12 of the Amendment Act shall be deemed to have come into force with effect from 5-11-1980 and the other sections have come into force on and from 11-10-1983, the date of publication of the Amendment Act in the Gazette. There was thus no provision for removal of a member or President who had incurred any of the disqualifications enumerated in Sub-section (4) of Section 28 of the Act Even after the Amendment Act the expression 'by the date of filing of his nomination' in Sub-section (4) has not been deleted

6. No notice had been issued to the petitioner to show cause as to why he should not be removed and he had been removed unheard by the impugned order. The principles of natural justice had been violated apart from the illegality and invalidity of the impugned order in view of what has been stated above. The impugned order cannot therefore, be allowed to stand.

7. In the result we would allow the writ application and quash Annexure-7, leaving the parties to bear their own costs of this proceeding

R.C. Patnaik, J.

8. I agree that this writ application should be allowed and Annexure-7 should be quashed

9. The short question that arises for consideration in this writ application is if the petitioner who was functioning as the President of the Patamundai Primary Fishermen Cooperative Society was removable from office under Section 28 of the Act on the ground that he held the office of President for a total period of nine years by the date of passing of the order ?

10. The impugned order does not state under which sub-section of Section 28 the power was exercised Presumably the removal was done in exercise of the power contained in Sub-section (5) for no other provision of Section 28 provides for removal. The disqualification incurred was said to be under Sub-section 28 (4) (b). As has been observed by my learned brother, admittedly, the petitioner had not completed nine years in office as President by the date of filing of his nomination. Hence, he had incurred no disqualification in terms of Section 28 (4) (b).

The more formidable challenge to the order however is that assuming that the petitioner had incurred such disqualification, there was no provision for removal. Sub-section (5) of Section 28 provides for removal where any of the disqualifications mentioned in Sub-section (3) is incurred. There is no reference therein to the disqualifications enumerated in Sub-section (4). The impugned removal is, therefore, ultra vires.

11. Admittedly, the petitioner was not heard before the impugned order was passed. The petitioner was holding the office of president of a co-operative society. His removal from office was indisputably prejudicial to him. He was, therefore, entitled to be dealt with justly and fairly. No doubt, the principles of natural justice are not embodied rules but their aim is to secure justice or to put it negatively, to prevent miscarriage of justice. They do not supplant the law of the land but only supplement it. Where the law is silent, no hard and fast rule can be laid down. It would depend upon the subject-matter, the framework of the law. If an opportunity is given, it may be possible for the person likely to be affected by the Act to show that the premises are factually baseless and/or legally untenable.


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