Election Cannot Be Said To Have Commenced If Notified By A Body Not Empowered To Do So: Orissa High Court

"This Bench is in respectful agreement with views expressed in Dillip Kumar Nayak (supra) on authority to conduct elections, as must be on basis of law so far as the association is concerned. Basis of law is its constitution. There is clear indication that the provisions therein were not complied with and followed in issuance of impugned notification."

Brief Facts:

A central election committee was wrongfully constituted by an appealing body of the OMSA. Here an appealing body purporting to be the appellate authority had constituted central election committee, which in turn notified election through a notification dated 1st February, 2022. This writ petition was filed challenging the said notification. When it was initially moved on 14th February, 2022, on having demonstrated that the notification was issued without authority, interim order was granted. Subsequently, the Court heard the parties on merit.

Contentions:

Mr. S.S.K. Nayak, advocate appearing for the opposite party no. 5, relied on the decision of the Supreme Court in Shaji K. Joseph v. Viswanath, to submit that once the process of election has commenced, the writ Court should loathe to interfere in the process. Hence, he suggested that the petitioner must avail remedy provided under the association's constitution but cannot move the Court to obstruct the process of election, as it had already commenced.

Mr. R. Acharya, advocate appearing for opposite party nos. 3 and 4, submitted that the election is in respect of an unregistered association and therefore, the writ petition is not maintainable. Mr. A.K. Sharma, Additional Government Advocate appearing on behalf of State, referred to clause-35 of the association's constitution to submit that the said clause bars any matter relating to the association being taken to Court of law without permission of the appealing body.

In reply Mr. K.K. Rout, who appeared for the petitioner, relied on clause-29 in the association's constitution. It provides for the central executive committee to appoint an election committee called as central election committee, consisting of three members. Drawing attention to clause-35 of the association's constitution regarding appealing body, he contended that the body is for conciliation and its role is to allow contesting parties to represent their cases and try to bring about an amicable solution. In that context only the clause says that no matter can be taken to the Court of law without permission of the appealing body.

He vehemently argued that there can be no fetter on a citizen's right to move Court under Article 226 of the Constitution. He referred to a notification dated 14th January, 1991 issued by the Home Department to the Health and Family Welfare Department, granting recognition to the association. He thus submitted that the writ petition is maintainable. Further, he relied on observations made by a learned single Judge of the High Court in Dillip Kumar Nayak v. State of Odisha, 2021 (I) ILR-CUT-373.

On query from the Court regarding petitioner's contention of the notification having been issued without authority, Mr. Nayak submitted that the same may be subject matter of dispute to be raised by the petitioner after the election process is completed. He repeated that the election process has commenced and thus, there should not be any interference by the writ Court.

Court's Observations:

The Court noted, the facts in this case are that the association's constitution provides for appealing body to engage in conciliation. It, calling itself the appellate authority, in its meeting held on 25th January, 2022, constituted central election committee. Clause-29(a)(i) clearly provides for constitution of the election committee by the central executing committee.

The Court then proceeded on to distinguish the facts in Shaji K. Joseph (supra), wherein a person had complained on not being allowed to contest the election by filing nomination. Therein, the Apex Court said that so far as the issue with regard to eligibility of the person, for contesting the election is concerned, though prima facie it appeared said person could contest the election, the Court did not deem it apposite to go into the issue because in its opinion, as per settled law, the High Court should not have interfered with the election after the process of election had commenced.

The Court went on to say that the judgments referred clearly show settled position of law to the effect that whenever the process of election starts, normally Court should not interfere with the process. The Court further said that very often, for frivolous reasons candidates and others approach the Court and by virtue of interim orders passed by Court, the election is delayed or cancelled and in such a case the basic purpose of election and getting an elected body to run the administration, is frustrated.

As aforesaid, facts in the instant case reveal that the process of election was commenced by a committee not duly constituted under the association's constitution. In the circumstances, the Court held, it cannot be said that the process of election had commenced.

The Bench expressed its respectful agreement to the observations made in Dillip Kumar Nayak (supra) on authority to conduct elections, as must be on basis of law so far as the association is concerned. It reiterated that basis of law is its constitution and there is a clear indication in this case that the provisions of the constitution were not complied with while issuing the impugned notification.

Accordingly, it allowed the writ petition, quashing the notification.

Case Title: Dr. Pabitra Mohan Mallik v. State of Odisha & Ors.

Case No.: W.P.(C) No. 4012 of 2022

Order Dated: 18^th May 2022

Coram: Justice Arindam Sinha

Counsel for the Petitioner: Mr. K.K. Rout, Advocate

Counsel for the Respondents: Mr. R. Acharya, Advocate; Mr. S.S.K. Nayak, Advocate; Mr. A.K. Sharma, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 93