Orissa HC Dismisses Appeal Against Cooperative Society Disqualification for Having Three Children

A Division Bench of the Orissa High Court upheld disqualification of a cooperative society member under Section 28(3)(p) of the Orissa Cooperative Societies Act, 1962, rejecting arguments on natural justice and a spousal election petition finding.

The Orissa High Court's Division Bench, led by Justice Krishna S. Dixit and Justice Chittaranjan Dash, dismissed an intra-court appeal filed by Sri Biswaranjan Mohanty challenging his disqualification from membership of Capital Cooperative Housing Limited. The disqualification was triggered by a Deputy Registrar of Cooperative Societies notice dated 19 November 2024, issued under Section 28(3)(p) of the Orissa Cooperative Societies Act, 1962, on the ground that he had fathered three children, two being the permissible ceiling. A learned Single Judge had already upheld the disqualification order on 8 January 2025 in W.P.(C) No.29872 of 2024. The Division Bench found all three grounds of challenge — denial of hearing, disregard of evidentiary material, and the binding effect of a finding in his wife's election petition — to be without merit.

The Cooperative Disqualification and Its Statutory Basis

Section 28(3)(p) of the Orissa Cooperative Societies Act, 1962 disqualifies a member, president, or vice-president of a cooperative society committee if that person has more than two children as on 1 January 1995. The bench described this as a disqualification that operates by force of law itself, though the Registrar is required to hold an inquiry into the foundational facts with participation of stakeholders before recording a finding.

Mohanty had risen from Primary Membership of Capital Cooperative Housing Limited to what the bench described as the “pinnacle of confederation.” The Deputy Registrar's notice of 19 November 2024 found that Appellant's name appeared in the father's column against a third child in the original Birth Register. Mohanty contested the disqualification in W.P.(C) No.29872 of 2024 alongside W.P.(C) No.18920 of 2024. Both petitions were negated by a common judgment of the Single Judge dated 8 January 2025, which in turn prompted the present Letters Patent Appeal filed under Section 10 of the Letter Patent of the Patna High Court, read with Article 4 of the Orissa High Court Order, 1948.

Arguments Advanced for the Appellant

Senior Advocate Mr. P.K. Rath, appearing for Mohanty, pressed three main contentions before the Division Bench.

First, he argued that the Appellant was not the father of the third child at all. He pointed to a finding recorded in an election petition filed against Mohanty's wife on the same ground — that she had three children — where the fact-finder reached a contrary conclusion. He submitted this finding had resolved the question beyond doubt and could not be ignored.

Second, he argued that the authorities below had failed to consider abundant evidentiary material that supported Mohanty's claim of non-paternity. A post-litigation rectification of the Birth Register had substituted the name of Mohanty's brother in place of Mohanty's name in the father's column. He also relied on a Hospital Discharge Summary.

Third, he contended that the disqualification orders were vitiated by a denial of opportunity of hearing, amounting to a violation of the principles of natural justice. He further argued that the author of the disqualification order — the Deputy Registrar — lacked competence to issue such an order under the 1962 Act.

The State's Additional Government Advocate and Senior Advocates for the private respondents resisted the appeal, contending that the evidentiary material was generated after the lis commenced and was therefore unworthy of reliance. They also urged that an intra-court appeal carries conventional restrictions on re-examination of facts already considered by both statutory authorities and a Single Judge exercising writ jurisdiction.

On Natural Justice: Written Submission Filed, No Denial Made

The bench found the natural justice plea unsustainable on the record. It observed that Mohanty had been served with notice of the proceedings and had responded by filing a written submission. Critically, that written submission contained no denial whatsoever of the allegation that he had more than two children. The bench held that the opportunity of hearing does not obligate an authority to permit oral submissions once a written reply has been filed.

The bench added that principles of natural justice cannot be invoked as a formulaic shield without demonstrating, at least prima facie, the actual prejudice caused by the alleged violation. Given the absence of any denial in the written reply, the natural justice ground was rejected.

On the Evidentiary Material: No Plea, No Evidence Required

The bench dealt with the post-litigation rectification of the Birth Register with some firmness. In the original Birth Register, which formed part of the record, Mohanty's name appeared in the father's column against the third child. A rectification secured after the lis began substituted the name of his own brother. The bench noted that no explanation had been offered as to how Mohanty's name came to be entered in the first place, much less that it was entered in error.

The Discharge Summary of the Hospital was also discounted. The bench found it lacking in material particulars — specifically, there was nothing to show who had furnished the information to hospital officials for making entries.

More fundamentally, the bench held that since Mohanty had not made a single statement in the proceedings below denying that he had three children, there was no plea on record to which the evidentiary material could attach. It is a settled proposition that in the absence of a plea, evidentiary material need not be examined at all. The bench was unmoved by the fact that Mohanty was not an illiterate person unfamiliar with legal proceedings — he had contested elections to the Primary Membership and held positions beyond that.

The Election Petition Ruling: Not a Judgment in Rem

The most doctrinally developed portion of the judgment addresses Mohanty's reliance on the finding in his wife's election petition. That petition had been filed against Mohanty's wife on the ground that she too had three children, and the fact-finder had returned a contrary finding. Mohanty argued this finding should bind the present proceedings.

The Division Bench rejected this entirely. It held that the decision in an election petition is a judgment in personam, not a judgment in rem. Mohanty was not a party to that petition. The bench drew on standard authorities on what distinguishes a judgment in rem — one that determines the status of a person or thing as against the world generally — from one that binds only the parties to the proceedings.

The bench then referred to Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju, AIR 2006 SC 543, where the Supreme Court held that a judgment in an election petition under the Representation of the People Act, 1951 could not be treated as a judgment in rem. The Division Bench applied the reasoning to the present context, while acknowledging that the present dispute arose under the 1962 Act, not the Representation of the People Act. It clarified that it drew on the Supreme Court ruling only for its exposition of what constitutes a judgment in rem, and not on the specific statutory framework examined there.

Competence of the Deputy Registrar

Mr. Rath's contention that the 1962 Act did not designate any authority in express terms to enforce Section 28(3)(p) was also turned down. The bench reasoned that where a statute creates a policy imperative but does not name a specific implementing authority, the authority functioning as the conscience-keeper of that policy must necessarily be conceded the power to give it effect.

The bench pointed to the structure of the 1962 Act: Section 2(i) defines the word “Registrar” inclusively, encompassing persons appointed to assist the Registrar. Section 3 empowers the Government to make such appointments, and sub-section (2) of Section 3 empowers the Government to clothe such an official with the powers of the Registrar under the Act. The disqualification notice of 19 November 2024 was issued by the Deputy Registrar, who fell within this framework. The competence challenge was dismissed.

Constraints on an Intra-Court Appeal

The bench also accepted the respondents' general submission that an intra-court appeal of this nature carries conventional restrictions. The Court cannot undertake a deeper examination of findings of fact recorded by statutory authorities in a normative manner after giving the stakeholders an opportunity of hearing — particularly when those findings have secured the approval of a Single Judge exercising the limited extraordinary jurisdiction under Articles 226 and 227 of the Constitution. An eminent case must be made out for interference in appellate jurisdiction, and none had been made out here.

The Statutory Policy Context

The bench took note of the constitutional and policy underpinning of the disqualification provision. Entry 20-A “Population Control & Family Planning” was introduced into the Concurrent List in the Seventh Schedule by the Constitution (Forty-Second Amendment) Act, 1976, with effect from 3 January 1977, enabling the Centre and States to legislate concurrently on population control. The bench observed that Section 28(3)(p) of the 1962 Act is a positive legislative measure directed at checking population growth. It noted a comparable provision exists in Section 25(1)(v) of the Odisha Grama Panchayats Act, 1964. The bench referenced Bertrand Russell's writing on overpopulation from Fact and Fiction to situate the broader concern that animated the legislation, though the legal conclusions rested on the statutory and evidentiary grounds addressed above.

Order

The Division Bench dismissed W.A. No.365 of 2025 as devoid of merits. No costs were imposed, costs having been made easy. The bench recorded its appreciation for the assistance of its official Law Clerk-cum-Research Assistant, Mohammed Nihad Sharief. The judgment was authored by Justice Krishna S. Dixit, with Justice Chittaranjan Dash concurring.