An election within an unregistered association is invalid if conducted by an improperly constituted committee that does not adhere to its governing constitutional provisions.

ORDER

1. Mr. Rout, learned advocate appears on behalf of petitioner and submits, central election committee was wrongfully constituted by the appellate authority. The constitution of Odisha Medical Services Association provides for appealing body. Here an appellate authority purporting to be the appealing body had constituted central election committee, which in turn purportedly notified election by notification dated 1^st February, 2022. He submits, the petition was moved on 14^th February, 2022 and on him having demonstrated that the notification was issued without authority, interim order was granted.

2. Mr. Nayak, learned advocate appears on behalf of opposite party no.5 and relies on judgment of the Supreme Court in Shaji K. Joseph v. Viswanath reported in 2016 (I) CLR (SC) 688, paragraph- 14 to submit, once the process of election has commenced, the writ Court should not interfere, was the declaration of law. Petitioner must avail remedy provided under the association’s constitution but cannot move the Court to obstruct the process of election, already commenced. Mr. Acharya, learned advocate appears on behalf of opposite party nos. 3 and 4 and submits, the election is in respect of an unregistered association and, therefore also, the writ petition is not maintainable. Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of State and refers to clause-35 in the association’s constitution to submit, said clause bars any matter relating to the association being taken to Court of law without permission of the appealing body.

3. In reply Mr. Rout relies 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. He reiterates, the appellate authority purporting to be the appealing body constituted central election committee. Drawing attention to clause-35 in the association’s constitution regarding appealing body he submits, 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 the clause says that no matter can be taken to the Court of law without permission of the appealing body. There can be no fetter on a citizen’s right to move Court under article 226 in the Constitution of India. He refers to page- 8 in his client’s rejoinder, being memo dated 14^th January, 1991 issued by the Home Department to the Health and Family Welfare Department, granting recognition to the association. He submits, the writ petition is maintainable. He relies on views expressed by a learned single Judge of this Court in Dillip Kumar Nayak v. State of Odisha reported in 2021 (I) ILR-CUT-373. Inter alia, a passage there from is reproduced below.

“In such background, this Court is of the opinion that it can examine whether the above noted directions of the Addl. District Magistrate, Bhadrak as contained under Annexure-4 with regard to holding of election of a registered society like opposite party no.6 were issued validly. To a query put by this Court, Mr. Dhal could not bring to the notice of this Court any legal provisions, which authorize the Addl. District Magistrate, Bhadrak (opposite party no.3) to issue the above noted directions for conducting election. It may be seen that the matter relating to conduct of election is clearly covered by Clause-10 (Kha) of the approved amended bye-law of opposite party no.6 under Annexure-2. A perusal of the same makes it clear that it is the general body in its meeting can decide to go for election and for conducting the same, majority of the members present in the general body have to nom