Chandan Prajapati & Anr vs State Of Odisha And Ors

Dr. S.K. Panigrahi, J.

Since common question of facts and law are involved in all these Writ Petitions, the same were heard together and are being disposed of by this common judgment.

The  Petitioners  in  the  above  mentioned  Writ  Petitions (hereinafter referred to as “the Petitioners” for brevity) have made prayer to quash the Letter No.1654 dated 25.08.2022 issued by the Additional District Magistrate, Keonjhar (hereinafter referred to as “the ADM” for brevity) to the Members of the General Body of Keonjhar District Truck Owners’ Association (hereinafter referred to as “the KDTOA” for brevity) directing the Members of the General Body of KDTOA to enable the Members of the Advisory Body of KDTOA to take over the office of KDTOA and initiate necessary action for the election of the next Governing Body of the KDTOA by 30.09.2022 and the Minutes of the Meeting held in the office chamber of the ADM on 23.08.2022 deciding/ directing the Members of the General Body of the KDTOA to enable the Advisory Board to take over the office of the KDTOA to process and complete the election by 30th September, 2022. They further seek a direction from this Court to the ADM to conduct election with the help of the officers of the District Administration by taking over the charge of the KDTOA.

I. FACTS OF THE CASE:

The fact of the case, in brief, is that the Petitioners are Truck Owners and Members of the KDTOA which is registered under the Societies Registration Act, 1860 (hereinafter referred to as “the Act” for brevity) having Registration No.18935/18 of 1984-85. For the purpose of smooth functioning of the said Association, a Bye-law was adopted and the same was approved by the competent authority. The aim and object of the Association is to facilitate its members for running of smooth business of private transport and some social works as well in order to provide relief to the needy areas affected by natural calamities and other emergencies of flood, cyclone etc., undertakes plantation programmes, organize eye and blood donation camps etc. As per the Bye-law, a Governing Body is to be constituted and the Office Bearers of the Governing Body is to be elected by the Members of the Association. The term of the office is for 3½ years. As per the Bye-law, a Governing Body was constituted and approved by the competent authority on 01.04.2015 which got expired on completion of 3½ years with effect from 01.10.2018.

While the matter stood thus, the General Body in their meeting, resolved for amendment of the Bye-law. By virtue of a Resolution, some amendments were made in the Bye-law on 01.05.2015 which was approved by the Inspector General of Registration-cum- Registrar of Societies, Odisha. As per the amended Bye-law, an election was held on 27.01.2019 and the result thereof was declared on 03.02.2019. The Governing Body of the KDTOA came to force with effect from 03.02.2019 and the term of the Governing Body came to an end with effect from 09.08.2022.

As per Clause-4(e) of the Bye-law, there shall be an Advisory Board consisting of Life Members and Honorary Members. It consists of minimum three and maximum seven Members. They are also the arbitrator in any disputed matter of the Association, if referred by the President. They may suggest, verify, inquire any matter pertaining to the day to day management. Advisory Board will be selected by the General Body. They are authorized to exercise some extraordinary power to deal with emergency. They will attend the executive body meeting. Therefore, the Advisory Board has extraordinary power to deal with emergency. It is understood that after expiry of term of the Governing Body, the functions of the Governing Body vests on the Advisory Board.

After completion of the election process in the year 2019, an intimation was sent to the Opposite Parties/ State regarding conclusion of the election and the name of the elected Members of the Governing Body vide letter dated 04.02.2019 by the Advisory Board, KDTOA. From the aforesaid letter, it would be clear that since the term of the Governing Body was expired in July, 2018, the election process was conducted by the Advisory Board and the same was intimated to the authorities.

After expiry of the term of the Governing Body on 09.08.2022, the Advisory Board wrote letter dated 23.05.2022 to the Collector, Keonjhar intimating therein that the term of the Governing Body was going to be expired on 09.08.2022 and, therefore, fresh election was required to be conducted. In order to discuss the issues placed by the Members of the KDTOA before the District Administration, a meeting was held in the office Chamber of the ADM on 23.08.2022 wherein it was decided to direct the Members of the General Body to enable the Advisory Board to take over the Office of the KDTOA to process and complete the election by 30th September, 2022. The ADM vide letter dated 25.08.2022 intimated the outgoing Governing Body that the tenure of the office of elected Governing Body had expired on 09.08.2022 and as there was no resolution for continuance of the outgoing Governing Body, it was presumed that the power of the Governing Body stood dissolved. Further, a direction was issued to the Advisory Board to take over the office of the Association and take necessary steps for election as per the Rules and Regulation adopted by the Governing Body.

The Petitioners have filed the aforementioned Writ Petitions challenging such Minutes of the Meeting held in the office chamber of the ADM on 23.08.2022 and the Letter No.1654 dated 25.08.2022 issued by the Additional District Magistrate, Keonjhar.

II. SUBMISSIONS OF THE PETITIONERS:

Learned counsels for the Petitioners has brought forward the following submissions:

a. Since the ADM is the competent authority to approve/ disapprove the elected Members of the Governing Body, after expiry of the term of the outgoing Governing Body i.e. on 09.08.2022, a meeting was conveyed in the office of ADM on 23.08.2022. In the said meeting, the Sub-Collector, Keonjhar, Deputy Collector, Revenue, Collectorate, Keonjhar, and the Members of the Advisory Board had attended the meeting and it was resolved that the Advisory Board of the KDTOA is to take over the charge of the Association and they shall take all possible steps to conduct the election with the support of their registered Members and the support of the District Administration for maintaining law and orders and providing security to conduct the election. Further, it was resolved that the election process is to be completed by 30.09.2022.

b. In spite of the resolution passed under the Chairmanship of the ADM, the Advisory Board of the KDTOA has not taken any step for commencement of the election of the Association. Therefore, one of the members of the Association had filed W.P.(C) No.27582 of 2022. The said Writ Petition was disposed of by this Court vide order dated 27.10.2022 with an observation that the ADM would do well to issue necessary direction to the Advisory Board of KDTOA for initiating election of the Association within a stipulated date.

c. After disposal of the said Writ Petition, the ADM wrote a letter to the Advisory Board of the KDTOA requesting the Advisory Board to conduct election of the Governing Body on 25.11.2022 and report compliance.

d. On receipt of the said letter, the Advisory Board of KDTOA wrote a letter to the General Secretary of the outgoing Governing Body of the KDTOA requesting him to supply the “Preliminary Voter List” if he had not made it final, so that the Advisory Board would make it final and start the process of election.

e. After expiry of the term of the Governing Body, there is no Secretary of the Association. Time and again, the ADM has requested the Advisory Board of the KDTOA to conduct election as per the Bye-law owing to the fact that after expiry of the term, the Advisory Board is the in-charge of the Management and they have the duty to conduct election in time. It was contended that failure on the part of the Advisory Board to conduct the election, the ADM is to take steps for conducting the election, otherwise the Association will be defunct.

f. The term of the Governing Body has already expired since 09.08.2022. The District Administration has convened a meeting and a decision was taken for conducting election by 30.09.2022. In the meantime, more than nine months have already been passed. Despite the direction of this Court to the ADM to take appropriate steps for conducting the election of the Association, the ADM is sitting over the matter by shifting the responsibility to the Advisory Board of the KDTOA. By this process, the Association is without a Governing Body which impedes smooth functioning of the Association and causing serious prejudice to the Members of the Association.

g. Since the tenure of the Association expired on 09.08.2022 and even if steps were taken by the members of the Association, yet the ADM in presence of the Sub-Collector, Keonjhar, Dy. Collector (Revenue), Collectorate, Keonjhar along with the members of the Advisory Board of the Association has convened a meeting on 23.08.2022 to discuss the issue of conducting election for smooth management of the Association. In the said meeting, the ADM by relying upon an unwarranted opinion of the Advisor of the Association decided that the office of the Association would be taken over by the Advisory Board and they shall take all possible steps to conduct the election with support of their registered members and support of the District Administration for maintaining the law and order and providing security to conduct the election. The impugned Minutes of the said meeting dated 23.08.2022 was communicated to the Members of the General Body of the Association by the impugned letter No.1654 dated 25.08.2022 issued by the ADM. Hence, it is ascertained that the entire exercise was undertaken by the District Administration under the Chairmanship of the ADM in the said meeting held on 23.08.2022 without authority. In the said letter, the direction was that the Advisory Body of the Association would take over the office of the Association and initiate necessary action to hold election by 30.09.2022 as per Rules and Regulations adopted.

h. In view of the above, the Petitioners challenge the impugned minutes  of  the  meeting  held  on  23.08.2022  under  the Chairmanship of the ADM and the letter dated 25.08.2022 issued by the ADM seeking quashing of the same. They further pray that the ADM may be directed to conduct election of the Governing Body of the KDTOA with the help of the officers of the District Administration by taking over the charge of the Association at an early date.

IV. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY/ ADM:

Per Contra, learned counsel for the State has brought forward the following submissions:

a. As per the Bye-law of KDTOA, the term of Executive Body expired on 09.08.2022. Some members of the KDTOA supporting the election filed grievance petitions before the District Administration on 24.05.2022 and 03.06.2022 seeking timely election. They are also continuing their agitation hunger strict before the office of the Collector, Keonjhar. Apprehending law and order situation between two rivalry groups of the members of the Association, a meeting was convened on 23.08.2022 under the Chairmanship of the ADM with the members of the Advisory Board as well as other members of the Association. In order to resolve the issue in a peaceful manner, instruction was issued to the members of the General Body of KDTOA vide letter No.1654 dated 25.08.2022 to conduct election by 30.09.2022 of the General Body/Executive Body by the Advisory Board. In fact, neither has there any order been violated nor has travelled beyond the power by the District Administration. Rather, the District Administration has acted in a congenial manner to avoid any law and order situation.

b.  In order to avoid legal complicacy and law and order situation, the member of General Body of KDTOA were directed to enable the Advisory Body of KDTOA to take over office of KDTOA for smooth management in absence of Governing Body of the Association vide letter No.16543 dated 25.08.2022.

c. This Court vide order dated 27.10.2022 passed in W.P.(C) No.27582 of 2022 (Balaram Rout v. State of Odisha and others) issued the following order:

“Though the learned Counsel for the State raised objection of the maintainability of the writ petition but in view of the limited nature of grievance of the petitioner, who is a member of the Association, the Opp. Party No.4- Addl. Dist. Magistrate. Keonjhar shall do well to issue necessary direction to the Advisory Board of Keonjhar District Truck Owners Association i.e. Opp. Party No.7 in term of Annexure-5 and 6 for initiating necessary action for election of the Governing Body of the KDTOA office within a stipulated date.”

d. Accordingly, vide letter No.2196 dated 31.10.2022 instruction has been issued by the ADM to the Advisory Board, KOTOA to conduct election of the Governing Body of the KDTOA on 25.11.2022.

e. There was no positive attitude of the office bearers to conduct the election of Executive Body of KDTOA. A group of persons were approaching the District Administration to conduct timely election. Therefore, the District Administration had taken steps to conduct a meeting and it has issued instructions to the Advisory Body to conduct timely election.

f. In such view of the matter, learned counsel for the State submitted that these Writ Petitions are liable to be dismissed being devoid of merit.

IV. COURT’S ANALYSIS AND REASONING:

The KDTOA is a Registered Association under the Act and has been guided by the said Act and its By3-laws. The Bye-laws of the said Association has been approved by the Inspector General of Registration- cum- Registrar of Societies, Odisha. Clause-3 and Clause-4 of the Memorandum of the Society under the Act stipulates powers and functions of the Governing Body and General Body of the Association.

The tenure of the Association has been expired with effect from 01.04.2018. At that point of time, lots of disputes were raised by vested interests through various Writ Petitions. Ultimately, the disputes were decided by this Court vide order dated 18.12.2018 passed in W.P.(C) No.8731 of 2018. This Court vide the said order quashed the directions of District Administration with respect to holding of election of the Association and observed that the Collector, Keonjhar has no authority and/or jurisdiction to direct any of its sub-ordinate including the ADM to take up the management of the Association and run its affairs and further to directed to hold fresh election. However, this Court in the same judgment has also given liberty to the District Administration to take such steps as permissible under the law to handle any law and order situation, if so arises during the election.

After the order dated 18.12.2018 passed by this Court, the General Body of the Association conducted election of the Association whose tenure was up to 09.08.2022. After expiry of the said tenure of General Body on 09.08.2022, when steps were taken by the Members of the Association for further election, the ADM in its letter dated 25.08.2022 on a presumption that the powers of the Governing Body stood dissolved on expiry of the tenure of the elected body of the Association on 09.08.2022, directed the Advisory Board of the KDTOA to take over the office of the Association and initiate action for the election of the next Governing Body of the KDTOA by 30.09.2022 as per the Rules and Regulations adopted by the members of KDTOA in their Bye-laws.

An Additional Affidavit has been filed by the Petitioners in W.P.(C) No.14229 of 2023 stating therein that some of the truck owners of Keonjhar District has filed the Writ Petition, inter alia, praying for a direction to the Inspector General of Registration-cum- Registrar of Societies, Odisha to ensure that the election to be conducted to constitute the succeeding Governing Body of the KDTOA within the stipulated time period along with ancillary prayers. This Court vide order dated 16.05.2023 has been pleased to issue notice to the Opposite Party Nos.5 to 7 therein by Special Messenger, fixing the date of hearing to 26.07.2023.

After receipt of notice of this Court, the General Secretary of KDTOA issued a Press Release on 03.06.2023. The said Press Release transpires that an emergent executive meeting of the Association was held on 02.06.2023, wherein, a consensus was arrived at for holding the election in the month of September, 2023. Before the poll, the ancillary arrangements like preparation of electoral rolls and the scrutiny of the same was decided to be published on 20.06.2023. The same has been done in the meantime. As per the said press release, after hearing of the objections of the said voters list, the names of all eligible voters is yet to be published.

In conformity with the aforesaid decision of the Committee, the Association vide Notice dated 20.06.2023, published the Provisional Voters list and invited objections from the members to be filed between 21.06.2023 to 27.06.2023 with the requisite papers for the purpose of inclusion of the eligible voters. In view of the aforesaid development, the election process has commenced to constitute the succeeding Governing Body of the Association.

In so far as the Advisory Board is concerned, Clause-4(c) of the Memorandum of the Society under the Act provides the constitution and function of the Advisory Board which are extracted herein below:

“4. General Body

Xx xx xx xx xx xx

(c) Advisory Board:

Life members and honorary members can be the advisors of the committee. It consists minimum three and maximum seven. They are the arbitrator in any disputed matter of the association, if referred by the President. They may suggest, verify, inquire any matter in the day to day management. Advisory Board will be selected by the General Body. They are authorized to exercise some extra ordinary power to deal with emergency. They will attend the executive body meeting.”

The said Clause of the Memorandum of the Society under the Act does not show that the election of the KDTOA to be conducted by the Advisory Board. It shows that the Advisory Board is authorized to exercise some extraordinary power to deal with emergency subject to reference by the President. It seems that no extra-ordinary/ emergent situation has arisen in the present case for the Advisory Board to take over the office of KDTOA. However, the ADM vide the impugned letter dated 25.08.2022 has directed the Advisory Board of the KDTOA to take over the office of the KDTOA and initiate necessary action for the election of the next Governing Body of the KDTOA by 30.09.2022. So also in the impugned Minutes of the Meeting dated 23.08.2022 held in the office Chamber of the ADM, it was decided to direct the members of General Body to enable the Advisory Board to take over the office of KDTOA to process and complete the election by 30.09.2022.

In such view of the matter, the prayer of the Petitioners is allowed. The impugned letter dated 25.08.2022 issued by the ADM and the impugned Minutes of the Meeting dated 23.08.2022 held in the office Chamber of the ADM are hereby quashed.

Additionally, as it has been brought to the notice of this Court that the office bearers have already started the process for conducting election of KDTOA in the month of September, 2023, the District Administration, Keonjhar is at liberty to take any such steps as permissible under law in case any law and order situation arises in connection with such election. It is made clear that steps be taken for the election of KDTOA at the earliest possible so as to avoid any kind of unpleasant atmosphere in the democracy of the Association.

Accordingly, all these Writ Petitions are disposed of.

Interim order dated 28.10.2022 passed in I.A. No.12626 of 2022 arising out of W.P.(C) No.23667 of 2022 stands vacated.

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