Kerala Co-operative Societies Act, 1969 - the copy of the resolution that has to be enclosed along with
the nomination of the petitioner as a delegate of the member Society, with the
signature of the petitioner, attested in the manner prescribed in the election notification, is an essential part of the nomination. The omission to
submit a copy of the resolution in the prescribed manner is a substantial
defect, which goes to the root of the matter. The said defect cannot be cured
at the time of scrutiny of nominations and as such, the rejection of the
petitioner's nomination based on the order of the Returning Officer is perfectly legal, which warrants no interference under
Article 226 of the Constitution of India.
IN
THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY,THE
04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940
WP(C).No.
42517 of 2018
PETITIONER
P.
SUBAIR KUNJU, PRESIDENT AND DELEGATE, THE KAZHAKKOOTTAM HOUSING CO-OPERATIVE
SOCIETY LIMITED NO.T 742, KAZHAKKOOTTAM POST, THIRUVANANTHAPURAM DISTRICT, PIN
CODE-695 582.
BY
ADV. SMT.NISHA GEORGE
RESPONDENTS
1
THE STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO-BANK TOWERS, VIKAS
BHAVAN P.O., THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS ADDITIONAL
REGISTRAR/SECRETARY.
2
THE RETURNING OFFICER/ASSISTANT REGISTRAR (PLANNING) OFFICE OF THE JOINT
REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CIVIL STATION,KAKKANAD,
ERNAKULAM DISTRICT,PIN CODE-682 030
3
THE KERALA STATE HOUSING FEDERATION LIMITED NO.4330, JUDGES AVENUE, KALOOR,
ERNAKULAM DISTRICT,PIN CODE-682 017 REPRESENTED BY ITS MANAGING DIRECTOR.
4
K.JANARDANAN NAIR, DELEGATE AND PRESIDENT, THE VELLANAD RURUAL HOUSING
CO-OPERATIVE SOCIETY T.357, VELLANAD POST, THIRUVANANTHAPURAM DISTRICT-695 543.
R4
BY ADV.SRI.M.SASINDRAN R1&R2 SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER
J
U D G M E N T
The
petitioner, who is the President of Kazhakkottam Housing Co-operative Society
Limited, a Primary Co-operative Housing Society, which is a member Society
affiliated to the 3rd respondent Apex Society, namely, the Kerala State
Housing Federation Limited, has filed this writ petition under Article 226 of
the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order
dated 21.12.2018 of the 2nd respondent Returning Officer, whereby the
nomination made by the petitioner as a delegate of the member Society, in the
election to the Board of Directors of the 3rd
respondent Federation, which is scheduled to be
held on 05.01.2019, stands rejected on the ground that the signature of the
petitioner as a delegate of the member Society is not attested in Ext.P2
resolution dated 25.11.2018 produced along with the nomination made by the
petitioner, as directed in Ext.P1 election notification dated 24.11.2018 issued
by the 1st respondent
State Co-operative Election Commission. The petitioner has also sought for a
writ of mandamus commanding the 2nd
respondent Returning Officer to include his name
in Ext.P7 list of valid nominations and include him as a candidate in the
ballot papers for Thiruvananthapuram Revenue District Constituency, in the
election to the Board of Directors of the 3rd
respondent Society, which is scheduled to be held
on 05.01.2019; and a declaration that the rejection of the nomination made by
the petitioner on the basis of nonattestation of the resolution by the
Secretary, which is not mandated by the statute, is bad and without any backing
in law.
2. On
28.12.2018, when this writ petition came up for admission, this Court passed
the following order;
“The
petitioner submitted a nomination for an election to the Kerala State Housing
Federation being a delegate of Kazhakkuttam Housing Co-operative Society Ltd.
This was rejected by the 2nd respondent vide Ext.P4 communication stating that
the signature of the petitioner was not attested by the Secretary. One of the
stipulations in Ext.P1 notification that the signature shall be attested by the
Secretary. The petitioner submits that in view of this, the petitioner supplemented
by Ext.P6(a). The petitioner further submits that the matter is related to
identity and there is no dispute with regard to the identity and therefore, the
petitioner shall be permitted to take part in election.
2. The learned Special Government Pleader
opposes the prayers and submits that this goes to very root of the nomination
and therefore the Court shall not pass any interim order and time may be
granted to file counter.
Taking
note of the nature of defect, I am of the view that the petitioner shall be
provisionally included as a candidate for Trivandrum District subject to
further orders to be passed .”
3.
A counter affidavit has been filed by the 2nd
respondent Returning Officer, opposing the
reliefs sought for in this writ petition. The 4th respondent, who is the
delegate and President of another member Society, viz., Vellanad Rural Housing
Co-operative Society, has also filed a counter affidavit, opposing the reliefs
sought for in this writ petition. The petitioner has also filed a reply affidavit.
4. Heard
the learned counsel for the petitioner, the learned Senior Government Pleader
appearing for respondents 1 and 2, the learned counsel for the 3rd respondent
Federation and also the learned counsel for the 4th respondent.
5. The
issue that arises for consideration in this writ petition is as to whether any
interference is warranted on Ext.P4 order dated 21.12.2018 of the 2nd respondent
Returning Officer, whereby the nomination made by the petitioner in the
election to the Board of Directors of the 3rd
respondent Federation, for Thiruvananthapuram
Revenue District Constituency as a delegate of Kazhakkottam Housing
Co-operative Society Limited, stands rejected.
6. The
election to the Board of Directors of the 3rd
respondent Federation is scheduled to be held on
05.01.2019, in terms of Ext.P1 notification dated 24.11.2018 issued by the 1st respondent
State Co-operative Election Commission. Clause (9) of the Note to Ext.P1
election notification reads thus:
[Omitted]
7.
The document marked as Ext.P2 is the resolution, which was enclosed along with
the nomination made by the petitioner. A bare perusal of Ext.P2 would make it
explicitly clear that the signature of the petitioner as the delegate of the
member Society, namely, Kazhakkoottam Housing Co-operative Society Limited is
not attested in that resolution, as per the mandate of Clause (9) of the Note
to Ext.P1 notification.
8. The
learned counsel for the petitioner would submit that in view of Ext.P6(a)
resolution produced before the 2nd respondent Returning Officer, at the time of
scrutiny of nomination, there is absolutely no justification in rejecting the
nomination made by the petitioner. Per contra, the learned Senior Government
Pleader would point out that, the specific stand taken by the 2nd respondent
Returning Officer in the counter affidavit is that Exts.P6 and P6(a) documents
were produced only after the scrutiny of nominations. The learned counsel for
the 4th respondent
would point out that, even in Ext.P6(a) resolution, the signature of the
petitioner as the delegate of the member Society is not properly attested by
the Secretary of that Society.
9. Placing
reliance on the proviso to sub-clause (ii) of clause (e) of sub-rule (6) of
Rule 35A of the Kerala Co-operative Societies Rules, 1969, the learned counsel
for the petitioner would contend that, even if Ext.P2 resolution is defective,
that is not a valid ground for rejecting the nomination made by the petitioner.
10. Rule
35A of the Kerala Co-operative Societies Rules deals with the procedure
regarding conduct of election to the committee of Societies by the State
Co-operative Election Commission. Sub-rule (6) of Rule 35A deals with
nominations. As per clause (a) of sub-rule (6), the nomination of the
candidates for election shall be made in Form No.36, which shall be supplied by
the Returning Officer to any member free of cost, on application. As per clause
(b) of sub-rule (6), every nomination paper shall be signed by two members
whose names are included in the voters list. One of the members shall sign the
form as proposer and the other as seconder for the nomination. The nomination
paper shall also contain a declaration signed by the candidate proposed for
election to the effect that he is willing to stand for election. Along with the
nomination paper he shall deposit two hundred and fifty rupees in the Society,
which shall be refunded to him if he gets more than ten percent of the total
votes polled, or withdraws nomination or his nomination is rejected or he is
declared elected by the Returning Officer without polling. In the case of
candidates belonging to Scheduled Caste/Scheduled Tribe deposit of one hundred
and twenty five rupees shall suffice.
11. As
per clause (c) of sub-rule (6) of Rule 35A, every nomination paper shall be
presented in person or sent by registered post with acknowledgment due by the
candidate himself, or by his proposer or seconder to the Returning Officer, so
as to reach him before the date and hour specified in item (iii) of the notice
referred to in clause (3). The Returning Officer shall enter on the nomination
paper its serial number and certify the date and hour at which the nomination
paper is received by him and shall immediately give a written acknowledgment
for the receipt of the nomination paper in Form No.37. Any nomination paper not
delivered or received on or before the date and time fixed for its receipt
shall be rejected. The Returning Officer shall publish the list of nomination
papers containing the name, address in the notice board on the last day fixed
for the receipt of nomination.
12. Clause
(d) of sub-rule (6) of Rule 35A provides that, no member shall be nominated as
a candidate for election to fill a seat in the committee, if he (i) is
ineligible to vote in the election; (ii) does not possess the necessary
qualifications, if any, specified in the bye-laws of the Society for election
and as a member of the committee; or (iii) is disqualified to be a member under
the provisions of the Act and rules.
13. Clause
(e) of sub-rule (6) of Rule 35A deals with scrutiny of nominations. As per
sub-clause (i) of clause (e) of sub-rule (6), on the day following the date
fixed for the receipt of nomination papers, the Returning Officer shall take up
the scrutiny of the nomination papers. The candidate or his proposer or his
seconder may be present at the time of scrutiny of nomination papers. As per
sub-clause (ii) of clause (e), the Returning Officer shall examine the
nomination papers and shall consider objection which may be made by any person in
respect of any nomination and may, either on such objection or on his own
motion and after such summary enquiry, if any, as he thinks necessary, reject
any nomination. As per the proviso to subclause (ii) of clause (e) of sub-rule
(6), the nomination of a candidate shall not be rejected merely on the ground
of an incorrect description of his name or of the name of his proposer or
seconder or of any other particulars relating to the candidate or his proposer
or seconder as entered in the list of members referred to in clause (b) if the
identity of the candidate or proposer or seconder, as the case may be, is
established beyond reasonable doubt.
14. As
per sub-clause (iii) of clause (e) of sub-rule (6) of Rule 35A, the Returning
Officer shall give all reasonable facilities to the contesting candidates or
their proposers or seconders, as the case may be, to examine all the nomination
papers and satisfy themselves that the inclusion of the name of the contesting
candidate is valid. As per sub-clause (iv) of clause (e) of sub-rule (6), the
Returning Officer shall endorse on each nomination paper his decision accepting
or rejecting the same, as the case may be, and if the nomination paper is
rejected, he shall record in writing a brief statement of his reasons for such
rejection. As per clause (f) of sub-rule (6), the list of valid nomination as
decided by the Returning Officer shall be published on the notice board of the
Society containing the names in alphabetical order and address of the
candidates as given in the nomination papers, on the same day on which the
scrutiny of the nomination papers are completed.
15. In
the instant case, the nomination made by the petitioner in the election to the
Board of Directors of the 3rd respondent Federation, which is an Apex Society,
is as a delegate of the member Society, namely, Kazhakkoottam Housing
Co-operative Society Limited. As per Clause (9) of the Note to Ext.P1 election
notification, extracted hereinbefore at paragraph 6, the signature of the
petitioner as a delegate of the member Society has to be attested in the
prescribed manner and a copy of the resolution has to be enclosed along with
the nomination. Admittedly, in Ext.P2 resolution, the signature of the
petitioner is not attested. A reading of the provisions under sub-rule (6) of
Rule 35A would make it explicitly clear that there is no provision under the
said rules whereby the Returning Officer can permit a candidate to cure any
defects in the nomination, at the time of scrutiny, and the only option
available to the Returning Officer is to reject such nomination.
16. In
Santhosh v. Joint Registrar [1994 (2) KLT
141] a decision relied on by
the learned counsel for the petitioner, in order to contend that rejection of
nominations should not be on hyper technicalities, this Court was dealing with
a case where the Returning Officer rejected nominations submitted by candidates
in the election to the Managing Committee of a Co-operative Society for the
following reasons; the name of the Society is not mentioned in the affidavit
filed in support of the nominations; the column for signature and date in the
attestation of the affidavit are left blank; the date of election not filled up
in the affidavit; etc. This Court after referring to various decisions held
that it is not each and every omission or mistake in the nomination paper that
entails its rejection but only something more which is substantial and goes to
the root of the matter.
17. In
Alibava v. Returning Officer [2001 (2) KLT
672], a decision relied on by the learned counsel for
the 4th respondent,
after referring to the law laid down in Santhosh's
case (supra), a Division
Bench of this Court held that the affidavit, which was part of the form adopted
by the Society in terms of the direction contained in Rule 35(3)(c)(i) of the
Kerala Co-operative Societies Rules forms an integral part of the nomination
paper of a candidate who proposes to contest the election. The appellants
omitted to sign the affidavit that was part of the nomination paper adopted by
the society and in that context, the Returning Officer was fully justified in
rejecting those nominations. The Division Bench held further that, the
affidavit prescribed serves a salutary purpose. The affidavit only insists on
the candidate solemnly affirming that he has not incurred the various specified
disqualifications contemplated by the Act, the Rules and the bye-laws. The
affidavit is certainly an essential part of the nomination and it aims at
keeping out those who are disqualified from contesting the election, leading to
disputes under Section 69 of the Kerala Co-operative Societies Act, which
themselves take years to resolve, so that by the time the resolution takes
place, the disqualified person who got elected, could serve out his term as a
member of the Managing Committee. If an attempt is made to eliminate such
contingency, it can only be considered as an act in furtherance of the object
sought to be achieved by the Act and the Rules. Paragraphs 4 to 8 of the said
decision read thus;
“4.
In the case on hand, admittedly the petitioners/ appellants had not signed the
affidavit that was thus made part of the nomination paper. On objection being
taken, the Returning Officer rejected the nomination papers on that ground. It
was feeling aggrieved by that rejection that the Original Petitions were filed
before this Court. It was contended on behalf of the petitioners that the
affidavit prescribed by the society or adopted by the society, was not an
essential part of the nomination which itself contains a separate declaration
as contemplated by the relevant provisions of the Act and the Rules to the
effect that the proposed candidate is not disqualified and hence the affidavit
was a mere surplusage and the nonsigning of that affidavit cannot lead to the
rejection of the nomination papers. It was alternatively contended that Rule 35
of the Rules prescribes the statutory requirements for the making of a valid
nomination and if those requirements are fulfilled, a nomination cannot be
rejected merely on the ground that a particular society has, in addition to
those requirements, added another requirement of an affidavit being sworn to by
the proposed candidate. It is also contended that so long as the requirement of
filing an affidavit is not made part of the bye-laws of the society in terms of
Rule 5 of the Co-operative Societies Rules, with particular reference to clause
(s), it could not be said that it is a mandatory requirement for a valid
nomination to sign an affidavit and submit it along with the nomination paper.
The learned single Judges in the judgments under appeal took the view that the
affidavit was part of the form adopted by the society in terms of the direction
contained in Rule 35(3)(c)(i) of the Co-operative Societies Rules and hence the
affidavit forms an integral part of the nomination paper of a candidate who
proposes to contest the election.
The
Court held that this requirement also becomes part of the statutory requirement
since the format or form of nomination is adopted by the society in terms of
the mandate contained in Rule 35(3)(c)(i) of the Co-operative Societies Rules.
In two of the judgments under appeal, the learned Judge also took note of the
fact that a co-operative society is not a creature of the Co-operative
Societies Act or the Rules, but is an association which has come into
existence, which is governed by the Act and the Rules and it has the authority
to prescribe a format for itself so long as the same does not in any manner
conflict with the provisions of the Act and the Rules. Thus holding that the
affidavit proposed is part of a valid nomination paper and the failure to sign
the affidavit made the nomination paper defective, liable to rejection, the
Original Petitions were dismissed.
5. In Santhosh
v. Joint Registrar [1994 (2) KLT 141],
a learned single Judge of this Court dealing with the question whether an
affidavit was part of a nomination paper, held that the affidavit was part of a
nomination paper if it had been prescribed or adopted by the society in
question. The learned Judge then held:
"The
affidavit sets forth this affirmation in greater detail with specific reference
to the various qualifications and disqualifications under the rules and the
bye-laws. Though this is the position, and they serve more or less the same purpose,
since the affidavit is also a requirement of the form prescribed by the
society, necessarily that has also to be properly executed and attested for the
purposes of a valid nomination. But that does not mean that any immaterial
defect therein should be blown out of proportion to entail rejection of the
nomination itself."
In
the judgment under appeal in W.A.No.2314 of 1998, the learned Single Judge has
referred to and followed this decision and has taken the view that the
nomination was rightly rejected, since the candidates had not signed the
affidavit that was part of the nomination paper.
6. What is contended on behalf of the
appellants is that even without the affidavit, the nomination paper prescribed,
includes a declaration containing the essential requirements which are
elaborated in the affidavit and since that declaration has been duly signed and
attested as required, it must be taken that the nomination submitted by the
appellants were proper and sufficient in the eye of law especially in the
context of Rule 35 of the Co-operative Societies Rules. Decisions were cited to
suggest that an affidavit may not really be necessary or that an affidavit
could be considered to be a surplusage. In Damodaran
v. Joint Registrar [1989 (1) KLT 858],
it was held that non affixing of the seal of the Advocate in the affidavit
cannot lead to rejection of the nomination paper and a rejection on that ground
would be improper. In Abraham v.
Returning Officer, [1993 (1) KLT 548],
one of the cases that was dealt with, was a case where the affidavit had not
been signed. Their Lordships set aside the rejection of the nomination paper.
But, it can be seen on a scrutiny of that decision that the question was not
considered in the context of Rule 35(3)(c)(i) of the Rules and the question
whether the affidavit formed an essential part of the nomination since the
format had been adopted by the society, was also not considered. It is,
therefore, not possible to understand the decision in Abraham v. Returning Officer [1993 (1) KLT 548] as an authority for the position that the
affidavit is a surplusage or is unnecessary or its requirement can be dispensed
with by a Returning Officer who is called upon to scrutinise the nomination. In
P. Panicker v. Venugopalan Nair [1993 (2) KLT
641], it was stated that the proviso to Rule
35(3)(e)(ii) of the Rules was not exhaustive and there could be cases outside
the proviso. As we noticed, one of the decisions has directly answered the
question that was raised before the learned Judges in the Original Petitions,
that are the subject matter of these Writ Appeals and that is raised before us
in these Writ Appeals. Therefore, the decisions referred to above cannot be
relied on for the position that the non-signing of the affidavits by the candidates
cannot lead to the rejection of their nomination papers.
7. Neither the Act nor the Rules
prescribe any format for a nomination to be made by a member who aspires to
become a member of the managing committee of a cooperative society. The rule
has left that to the society concerned. It is open to the society to prescribe
the necessary form of nomination for election to the managing committee of that
society. No doubt, it turned out that due to some confusion or other,
clarifications were sought for and certain circulars or instructions were
issued by the Registrar of Co-operative Societies. Whatever it be, the
nomination paper adopted by the society in question contains not only a
declaration in the facing page of the nomination paper, but also an affidavit
to be sworn to by the candidate as a part of the nomination paper. No doubt, it
is described as "Form of Declaration to be submitted along with Nomination
paper". But, from that description alone, it is not possible to hold that
that affidavit is not part of the nomination paper. In fact, with respect, we
are inclined to agree with the view of T. L. Viswanatha Iyer, J. in Santhosh v. Joint Registrar [1994 (2) KLT 141] on that aspect. In terms of Rule 35(3)(c)(i) of
the Cooperative Societies Rules, the affidavit has thus become part of the
nomination prescribed or adopted by the society concerned. It is, therefore,
clear that it is part of the nomination paper and a valid submission of the
nomination would include subscribing to the affidavit which we have found to be
part of the nomination paper. There is nothing in the Rules or the Act which
prevents a society from adopting this form of nomination. As observed by one of
the learned Judges in the judgment under appeal, it is open to the general body
of a society to prescribe the form of nomination for election to its managing
committee. No provision in the bye-law or amendment to the bye-law of the
society is needed. If so, in these cases, it is clear that the appellants had
omitted to sign the affidavit that was part of the nomination paper adopted by
the society and in that context, the Returning Officer was fully justified in
rejecting those nominations. We find that the view taken by the learned Judges
does not call for any interference in this appeal.
8. We may also notice that the affidavit
prescribed serves a salutary purpose. The affidavit only insists on the
candidate solemnly affirming that he has not incurred the various specified
disqualifications contemplated by the Act, the Rules and the bye-laws. The
election to the societies in the State are fought in a 'no holds barred'
fashion. Uprightness and integrity are not the hallmarks of the process. This
is clear from the various cases that come before this Court and the various
improprieties alleged as having taken place. It is probably in this context
that the Registrar of Co-operative Societies issued Circular 3/71 suggesting
that the filing of an affidavit would be necessary and should be adopted by the
societies so as to at least pin down the candidates who submit nominations to
the facts sworn to by them in that affidavit. Therefore, it cannot be said that
the prescribed affidavit is mere surplusage or that it does not serve salutary
purpose. We are, therefore, of the view that the affidavit is certainly an
essential part of the nomination and it aims at keeping out those who are
disqualified from contesting the election, leading to disputes under Section 69
of the Co-operative Societies Act, which themselves take years to resolve, so
that by the time the resolution takes place, the disqualified person who got
elected, could serve out his term as a member of the managing committee. If an
attempt is made to eliminate such contingency, it can only be considered as an
act in furtherance of the object sought to be achieved by the Act and the
Rules. Therefore, we have no hesitation in rejecting the argument that the
affidavit is a mere surplusage and it cannot be considered to be an essential
or integral part of the nomination paper.”
18.
In the instant case, the copy of the resolution that has to be enclosed along
with the nomination of the petitioner as a delegate of the member Society, with
the signature of the petitioner, attested in the manner prescribed in Ext.P1
election notification, is an essential part of the nomination. The omission to
submit a copy of the resolution in the prescribed manner is a substantial
defect, which goes to the root of the matter. The said defect cannot be cured
at the time of scrutiny of nominations and as such, the rejection of the
petitioner's nomination based on Ext.P4 order of the 4th respondent
Returning Officer is perfectly legal, which warrants no interference under
Article 226 of the Constitution of India.
19. In
the result, this writ petition fails and the same is accordingly dismissed.
Consequentially, the interim order will stand vacated.
The
learned Senior Government Pleader shall communicate the outcome of this writ
petition to the 2nd respondent Returning Officer forthwith.