ORISSA HIGH COURT, CUTTACK W.P.(C)Nos.23504,27209,27184,27206,27208,25460,27211,27215,27217, 27218,27219,27220,27224,27226,26896,26897,26898,26699,27232, 27332,19985,20995,26776 and 27205 of 2011. In the matter of applications under Articles 226 and 227 of the Constitution of India. ---------------- In W.P.(C ) No.23504 of 2011 Ranjita Kahali … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Advocate General For Opp.parties 3 to 7 : M/s.Bijan Ray(Sr.Adv.),B.Mohanty, S.Mohanty. B.Moharana, A.K.Budhia and D.Chhotray. In W.P.(C ) No.27209 of 2011 Surendranath Patnaik … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.party no.3 : M/s.B.R.Sarangi and S.N.Jena. In W.P.(C ) No.27184 of 2011 Jyotsna Mayee Samal … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Surjya Kanta Padhi, Prashanta Ku. Nayak, A.Mohapatra and S.Panigrahi. For Opp.parties : Advocate General. In W.P.(C ) No.27206 of 2011 Bijay Kumar Pati … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Bikram Pra. Das and S.K.Mishra. For Opp.parties : Advocate General. In W.P.(C ) No.27208 of 2011 Tarachand Agrawal … Petitioner Versus State of Orissa & others … Opposite parties 2 For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.party no.3 : M/s.Satya Ranjan Pati and D.Behuray. In W.P.(C ) No.25460 of 2011 Tilottama Pradhan … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Surjya Kanta Padhi, Prashanta Ku. Nayak and A.Mohapatra. For Opp.parties 1 & 2 : Advocate General. In W.P.(C ) No.27211 of 2011 Sushil Kumar Chand … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.party no.3 : M/s.B.R.Sarangi and S.N.Jena. In W.P.(C ) No.27215 of 2011 Kartikswar Parida … Petitioner Versus State of Orissa & others … Opposite parties 3 For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Addl. Government Advocate For Opp.parties 3 to 7 : M/s.Manas Mahapatra,S.K.Routray, S.K.Mohanty,R.P.Kar, A.N.Ray, L.Mohapatra and S.Pattnaik. In W.P.(C ) No.27217 of 2011 Sabita Satapathy & others … Petitioners Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Advocate General In W.P.(C ) No.27218 of 2011 Basanta Behera & others … Petitioners Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Advocate General In W.P.(C ) No.27219 of 2011 Sk.Abdul Toyab … Petitioner Versus State of Orissa & others … Opposite parties 4 For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Advocate General For Opp.party no. 3 : M/s.Niranjan Lenka,A.K.Otta, M.Mohapatra, Miss A.Behera, H.K.Mahanta and L.Sahu In W.P.(C ) No.27220 of 2011 Basanta Kumar Sethy … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Advocate General. For Opp.parties 3 : M/s.Debendra Mohanta,R.Ray, Sandeep Rath. In W.P.(C ) No.27224 of 2011 Dasarathi Behera … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.party no.3 : M/s.B.R.Sarangi and S.N.Jena. 5 In W.P.(C ) No.27226 of 2011 Chandi Prasad Singh … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.party nos.3&4 : M/s.Manas Ranjan Panda. In W.P.(C ) No.26896 of 2011 Kanan Bihari Pahi … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Advocate General. In W.P.(C ) No.26897 of 2011 Birendranath Basha … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Advocate General. For Opp.parties 3 to 6 : M/s.M.Mahapatra,S.D.Tripathy, S.K.Routray, L.Mohapatra S.Mohanty and S.Pattnaik 6 In W.P.(C ) No.26898 of 2011 Raj Kishor Pradhan … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.parties 1 & 2 : Advocate General In W.P.(C ) No.26699 of 2011 Bhabani Prasad Majhi … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Pitambar Acharya, B.Bhadra. S.Rath, B.K.Jena and S.Rout. For Opp.party no.3 : M/s.S.P.Misra(Sr.Adv.),N.Lenka, S.Nandy, B.Mohanty,S.Misra and S.Das. In W.P.(C ) No.27232 of 2011 Bijaya Kumar Sahu … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Bikram Pr. Das. For Opp.parties 3 & 5 : M/s.S.P.Misra (Sr.Adv.), Satyaranjan Pati and D. Dehury. 7 In W.P.(C ) No.27332 of 2011 Prahallad Mohanty & others … Petitioners Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Gouranga B. Jena. For Opp.parties 1 & 2 : Advocate General. In W.P.(C ) No.19985 of 2011 Aswini Kumar Das … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Ashok Ku. Mohapatra and A.K.Mohapatra. For Opp.party no.4 : M/s.B.R.Sarangi and S.N.Jena. In W.P.(C ) No.20995 of 2011 Lalitendu Senapati … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Ashok Ku. Mohapatra, A.K.Mohapatra,S.K.Padhi, N.C.Rout,S.K.Mishra and T.Kumar. For Opp.parties 1 & 2 : Advocate General. 8 In W.P.(C ) No.26776 of 2011 Sanjeev Mishra … Petitioner Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Santosh Ku.Pattnaik, U.C.Mohanty,P.K.Pattnaik, A.Pattanaik, S.P.Das and S.Pattnaik For Opp.parties 1 & 2 : Advocate General. In W.P.(C ) No.27205 of 2011 Bhagirathi Nanda and another … Petitioners Versus State of Orissa & others … Opposite parties For Petitioner : M/s.Prafulla Ku.Rath, P.K.Satapathy,R.N.Parija, A.K.Rou,T.S.K.Pattnaik and D.P.Pattnaik. For Opp.parties 1 to3 : Advocate General. ------------- P R E S E N T : THE HONOURABLE MR. JUSTICE B.P.DAS AND THE HONOURABLE MR. JUSTICE S.K.MISHRA ---------------------------------------------------------------------------------------------------------- Date of conclusion of hearing:23.11.2011: Date of judgment: 21.12.2011 ---------------------------------------------------------------------------------------------------------- S.K.Mishra, J. In this bunch of writ petitions the petitioners, office bearers of different Co-operative Societies, have assailed the vires of the Orissa Co- 9 operative Societies (Amendment) Act, 2011(hereinafter referred to as “the Amendment Act” for brevity). They specifically assailed the provisions of Section 2(g)(i) and 2(g)(ii) of Section 28 of the Amendment Act and the administrative action pursuant thereto whereby the Registrar, Co-operative Societies, opposite party no.2, has nominated persons other than the elected members to constitute the Managing Committee of the respective Co- operative Societies. 2. It is not disputed that there are about seven thousand Co- operative Societies in the whole of State of Orissa. Various Co-operative Societies were managed by the elected members and some cases the election has been held very recently. In such backdrop the Orissa State Legislative Assembly passed the Amendment Act whereby among other things it sought to amend the provision of reservation for various backward communities. By virtue of such an amendment, the management committees of all societies were dissolved from the date of the notification of such amendment and the management vested with the Registrar of the Co-operative Society. In order to understand the various amending provision it is necessary to look into the various amendment that has been carried out by virtue of the Amendment Act. 3. The Orissa Co-operative Societies Act, 1962 (hereinafter referred to as the “Act” for brevity) at various point of time, has been amended by the legislative assembly prior to the present Amendment Act. As the matters stood, Section 16 of the Act provided for the persons who may become 10 members of a Co-operative Society. Sub-section (1) provided for the membership of a Co-operative Society. Clause (b) provided no person shall be admitted as member of a Society other than a primary society, except the following, namely: (i) any Society (ii) the State Government; (iii) the Central Government; (iv) any other person as may be prescribed; and. (v) a Co-operative Society registered under the Orissa Self- Help Co-operatives Act, 2001. Sub-section (1-a) provided that notwithstanding anything to the contrary contained in any other provisions of this Act, and the rules or bye- laws framed thereunder, the members of the Committee including the co- opted members, if any, but excluding the members nominated or appointed under Clause (ii) of Sub-section (1-b) of Section 28, Sub-section (1) of Section 31 and Sub-section (1) of Section 32, of the primary Societies affiliated to the Central Society or an Apex Society shall be deemed to be the members of their respective Central Society or, as the case may be, the Apex Society or both, with effect from the date of commencement of the Orissa Co-operative Societies (Amendment) Act, 1997 so long as they continue as member of the Committees of Primary Societies. This section in effect provided for deeming membership of the Central and Co-operative Societies to which the Primary Societies have been affiliated. By virtue of Section 2 of the Amendment Act the provision of sub-section (1-a) of Section 16 of the Act is omitted. Thereby 11 the deeming provision regarding membership of the Central and Apex Societies is deleted. 4. Prior to the amendment Section 20 read as follows: “20. Vote of members – Every member of a Society shall have one vote in the affairs of the Society: [Provided that – (a) [ ***] (b) Where two individuals have been admitted as joint members, they shall have one vote which may be exercised by any one of them; (c) Where the State Government of the Central Government is a member of the Society, each person nominated by or on behalf of such Government on the Committee shall have one vote; (d) Where there is an equality of votes at a meeting on the affairs of the Society other than election of is office-bearers or amendment of its Bye-Laws, the person presiding over the meeting shall have a second and deciding vote; and (e) Where a member of the Society is simultaneously electing the President and the member of the Committee from his constituency, he shall have one vote for 12 electing the President and another for the member.] By virtue of an amendment after the proviso to Section 20 the following has been added: “Provided further that every member of an Electoral College referred to in Clause (ii-a) of sub-section (1) of Section 28-A shall have one vote in the matter of election of the member of the Committee of a Central and Apex Society.” Thus, by virtue of this amendment the legislature introduced the concept of Electoral College, which shall elect the committees of Central and Apex Society. 5. Section 28 of the principal Act provides the Society to have a Committee. The provisions of the said section provide for the powers of the Committee and also provide that there shall be a President and Vice President for the Committee [sub-section (1-a)]. Sub-section (1-aa) provided that the term of the Committee shall be four years from the date of assumption of the office by the Committee. This sub-section is amended and instead of four years the tenure is fixed at five years. Before amendment Sub-section (1-b) provided that the expiration of the period of four years shall operate as dissolution of the Committee and thereafter the members including the President and Vice President shall be deemed to have vacated the office and in case no election has been completed by the date of such dissolution the management of the Society shall vest with the Registrar. By amendment the legislature substituted 13 four years by five years. This is in consonance with the amendment of sub- section (1-aa). 6. Section 4 of the Amendment Act introduced further changes of Section 28 of the principal Act and in place of Clauses (b),(c),(d),(e),(f) and (g) the new clauses were introduced. Prior to the amendment Clauses (b), (c), (d), (e), (f) and (g) of sub-section (2) of Section 28 of the Amendment Act read follows: “(b) In the case of a Large-sized Adivasi Multipurpose Co-operative Society, two thirds of the total number of elected members of the Committee shall be from among the members belonging to the Scheduled Tribes, so however that the said two third shall also include women members numbering not less than one third of the total number of such elected members. Provided that the offices of the President and Vice- President shall be reserved for the Scheduled Tribes. Explanation - The principle for determining whether a society is a large sized Adivasi Multipurpose Co- operative Society or not shall be such as may be prescribed. (c) In the case of a Primary Society other than Large- sized Adivasi Multipurpose Co-operative Societies, two members each shall be from the Scheduled Castes and the Scheduled Tribes, three from Other Backward Classes including Socially and Educationally Backward Classes 14 and two from Women members, so that among each of the said Scheduled Castes, Scheduled Tribes and Other Backward Classes including Socially and Educationally Backward Classes of members, there shall be one woman. (d) In the case of a Central Society, two members each shall be from the Scheduled Castes and the Scheduled Tribes, three from Other Backward Classes including Socially and Educationally Backward Classes and two from Women members, so that among each of the said Scheduled Castes, Scheduled Tribes and Other Backward Classes including Socially and Educationally Backward Classes of members there shall be one woman. (e) In the case of an Apex Society, three members each shall be from the Scheduled Casts and the Scheduled Tribes, four from other Backward Classes including Socially and Educationally Backward Classes and three from Women members, so that among each of the said Scheduled Castes and Scheduled Tribes members, there shall be one woman and among the Other Backward Classes including Socially and Educationally Backward Classes members, there shall be two women. Provided that, save as provided in the aforesaid clauses there will be no bar for the members belonging to the said reserved categories to contest the election against the remaining seats in the Managing 15 Committee of the Primary, Central and Apex Co- operative Societies. (f) Notwithstanding anything contained in this Sub- section - (i) in the event of the seats in the Committee reserved for Women, Scheduled Castes, Scheduled Tribes and Other Backward Classes remaining unfilled in any election of a Primary Central or Apex Society, the Committee of the Society shall co-opt., the required number of such categories of members from among the members of the Society or, where the required number of such categories of members is not available for such co-option, the Committee shall co-opt the required number of members from amongst the members of the Society belonging to any category to fill up such seats, and for the purpose of making such co-option, the vacancies in the unfilled seats reserved for the said categories shall not invalidate the Constitution or functioning of the Committee, if otherwise it would be having a quorum. (ii) the terms of office of every such co-opted member shall be co-terminus with the other members of the Committee; (iii) [***] (g) (i) Notwithstanding anything to the contrary contained in this Act, Rules and Bye-laws, the Committee(which shall include a preliminary Committee) of every Primary Society, Central Society and Apex Society existing immediately 16 before the date of commencement of the Orissa Co-operative Societies (Amendment)Act, 2001 shall stand dissolved with effect from the said date and the members including the President and the Vice-President of every such Committee shall be deemed to have vacated their offices on that date, and where, on the date of such commencement, the management of any such society continues to vest in the Registrar, the proceedings or actions taken, if any, for constitution of the Committee thereof shall stand cancelled; (ii) the management of every society, the Committee of which is so dissolved or which so continues to vest in the Registrar, shall vest or, as the case may be, shall so continue to vest in the Registrar, and the Registrar or a Committee nominated by him from amongst the members of the society, or a member society affiliated to it or a society affiliated to such member society, as far as practicable representing in Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women, shall manage the affairs of the society and take all or any policy decision including admission of members in relation to the society till the Committee is constituted in accordance with the provisions of this act; (iii) every Society referred to in Sub-clause (ii) shall amend its bye-laws as may be necessary, so as to bring them in conformity with the 17 provisions of this Act as amended by the Orissa Co-operative Societies (Amendment) Act, 2001 and reconstitute the Committee within six months from the date of commencement of the said Act; and (iv) in the event of any Society failing to so amend its bye-laws and reconstitute the Committee within the period specified in sub- clause (iii), the Registrar shall make such amendment and reconstitute the Committee within [seventy-five months] following the date of expiry of the period so specified.” 7. After the amendment clauses (b), (c),(d), (e), (f) and (g) of sub- section (2) of Section 28 read as follows: “(b) In the case of a Large-sized Adivasi Multipurpose Co-operative Society, in the total number of elected members of the Committee, there shall be representation from among the members belonging to the Scheduled Tribes, which shall be proportional to the ratio between the members belonging to the Scheduled Tribes and the total number of members of the said Society, so however that the said scheduled Tribe representation shall also include woman members whose number shall be proportional to the ratio between the woman members belonging to the Scheduled Tribes and the total 18 number of the members belonging to the said Scheduled Tribes. . Provided that the offices of the President and Vice- President shall be reserved for the Scheduled Tribes. Explanation - The principle for determining whether a society is a large sized Adivasi Multipurpose Co- operative Society or not shall be such as may be prescribed. (c) In the case of a Primary Society other than Large-sized Adivasi Multipurpose Co-operative Society in the total number of elected members of the Committee, there shall be representation from among the members belonging to the Scheduled Castes, the Scheduled Tribes, the Other Backward Classes including Socially and Educationally Backward Classes and the Women which shall be proportional to the ratio between the members belonging to each said category and the total number of members of the said society, so that among each of the said Scheduled Castes, Scheduled Tribes and Other Backward Classes including Socially and Educationally Backward Classes of members, there shall be representation of woman which shall be proportional to the ratio between the woman members belonging to each said category and the total number of members of that category. (d) In the case of a Central Society, in the total number of elected members of the Committee, 19 there shall be representation from among the members belonging to the Scheduled Castes, the Scheduled Tribes, the Other Backward Classes including Socially and Educationally Backward Classes and the Women which shall be proportional to the ratio between the members belonging to each said category and the total number of members of the Electoral College referred to in clause (ii-a) of sub-section (1) of Section 28-A, so that among each of the said Scheduled Castes, the Scheduled Tribes and the Other Backward Classes including Socially and Educationally Backward Classes of members, there shall be representation of woman which shall be proportional to the ratio between the woman members belonging to each said category in the said Electoral College and the total number of members of that category in that Electoral College. (e) In the case of an Apex Society, in the total number of elected members of the Committee, there shall be representation from among the members belonging to the Scheduled Castes, the Scheduled Tribes, the Other Backward Classes including Socially and Educationally Backward Classes and the Women which shall be proportional to the ratio between the members belonging to each said category and the total number of members of the Electoral College referred to in clause (ii-a) of sub-section (1) of Section 28-A, so that among each of the said 20 Scheduled Castes, the Scheduled Tribes and the Other Backward Classes including Socially and Educationally Backward Classes of members, there shall be representation of woman which shall be proportional to the ratio between the woman members belonging to each said category in the said Electoral College and the total number of members of that category in that Electoral College. Provided that, save as provided in the aforesaid clauses there will be no bar for the members belonging to the said reserved categories to contest the election against the remaining seats in the Managing Committee of the Primary, Central and Apex Co- operative Societies. Provided further that there shall be at lest one representation from each said reserved category, if any. (f) Notwithstanding anything contained in this sub- section – (i) in the event of the seats in the Committee reserved for Women, Scheduled Castes, Scheduled Tribes and Other Backward Classes including Socially and Educationally Backward Classes remain unfilled in any election of a Primary Central or Apex Society, the Committee of the Society shall co-opt., the required number of such categories of members from among the members of the Primary Society, or as the case may be from among the members of the Electoral College of the Central or Apex Society, and for the purpose of making such co-option, the vacancies 21 in the unfilled seats reserved for the said categories shall not invalidate the Constitution or functioning of the Committee, if otherwise it would be having a quorum. (ii) the terms of office of every such co-opted member shall be co-terminus with the other members of the Committee; (f) (i) Notwithstanding anything to the contrary contained in this Act, Rules and Bye-laws, the Committee(which shall include a preliminary Committee) of every Primary Society, Central Society and Apex Society existing immediately before the date of commencement of the Orissa Co-operative Societies (Amendment)Act, 2011 shall stand dissolved with effect from the said date and the members including the President and the Vice-President of every such Committee shall be deemed to have vacated their offices on that date, and where, on the date of such commencement, the management of any such society continues to vest in the Registrar, the proceedings or actions taken, if any, for constitution of the Committee thereof shall stand cancelled; (ii) the management of every society, the Committee of which is so dissolved or which so continues to vest in the Registrar, shall vest or, as the case may be, shall so continue to vest in the Registrar, and the Registrar or a Committee nominated by him from amongst the members of the society, or a member society affiliated to it or 22 a society affiliated to such member society, as far as practicable representing in Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women, shall manage the affairs of the society and take all or any policy decision including admission of members in relation to the society till the Committee is constituted in accordance with the provisions of this act; (iii) every Society referred to in Sub-clause (ii) shall amend its bye-laws, as may be necessary, so as to bring them in conformity with the provisions of this Act as amended by the Orissa Co- operative Societies (Amendment) Act, 2011 and reconstitute the Committee within six months from the date of commencement of the said Act; and (iv) in the event of any Society failing to so amend its bye-laws and reconstitute the Committee within the period