Bhaskaran M v. State Co-operative Election Commission, Kasaragod Primary Co-operative Agricultural and Rural Development Bank, Kasaragod & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 9TH DAY OF APRIL 2014/19TH CHAITHRA, 1936** **WA.No. 32 of 2014 () IN WP(C).172/2014 ----------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 172/2014 of HIGH COURT OF KERALA DATED 02-01-2014** ## **APPELLANT(S)/PETITIONER:** **-----------------------------------------** **BHASKARAN M AGED 49 YEARS S/O.KUNHIRAMAN NAIR RESIDING AT PARACHAL HOUSE MULIYAR VILLAGE MULIYAR PO, KASARGODE DISTRICT.** **BY ADVS.SRI.T.R.RAVI SRI.JAWAHAR JOSE** ## **RESPONDENT(S)/RESPONDENTS:** **-----------------------------------------------** ## **1. THE STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM, PIN-695 001.** ## **2. THE ELECTORAL OFFICER** - **KASARAGOD PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK KASARAGOD, PIN-671 541** **3. THE RETURNING OFFICER KASARAGOD PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK KASARAGOD, PIN-671 541** **4. THE KASARAGOD PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK REPRESENTED BY ITS SECRETARY KASARAGOD, PIN-671 541** **R4 BY ADV. SRI.T.SETHUMADHAVAN (SR.) R4 BY ADV. SRI.PUSHPARAJAN KODOTH R4 BY ADV. SRI.K.JAYESH MOHANKUMAR BY SR GOVERNMENT PLEADER SRI.K.K.SAIDALAVI R3 BY SRI.GEORGE POONTHOTTAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/3/14 THE COURT ON 09/04/14 DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== Writ Appeal No. 32 of 2014 ====================** ## **Dated this the 9[th] day of April, 2014** ## **J U D G M E N T** ## Antony Dominic, J. Appellant filed the writ petition seeking to quash Ext.P2, the election notification issued by the first respondent in the purported compliance of Rule 35A of the Kerala Co-operative Societies Rules. He also sought a declaration that Ext.P2 notification was not issued in accordance with the intent and purport of the said rule. By the impugned judgment, the petition was dismissed and hence this appeal. 2. We heard Sri.Jawahar Jose for the appellant, Sri.George Poonthottam appearing for the 4[th] respondent and the learned Government Pleader for the other respondents. 3. Before examining the rival contentions, we deem it appropriate to take note of certain facts which are relevant. Appellant is an 'A' class member of the 4[th] respondent society. The area of operation of the society is within Kasaragod Taluk, which comprises of 41 villages. It is also averred that there are about 12000 members in the society and that majority of them **W.A.No.32/14** ## **: 2 :** are from 9 villages. It is further averred that the mother tongue of about 6000 members are Kannada or Thulu. 4. Election to the Board of Directors of the society was scheduled to be held on 11/1/2014 and as part thereof, in compliance with Rule 35 A(3) of the Rules, the first respondent issued Ext.P2 election notification and published the same in two newspapers by name Karaval Evening Daily and Thejus. 5. Regarding the publication thus effected, it is averred in the writ petition thus; _“The 1[st] respondent has published the election notification in Karaval Evening Daily (both in Kannada and malayalam languages), which is a newspaper published from Kasaragod. The said newspaper is having a total circulation of about 3000 copies in Kasaragod Taluk, whereas with respect to the above villages referred at paragraph 2, it has a circulation of less than 1000 copies. The petitioner could also learn that the publication has also effected in another newspaper by name Thejus, which is having a maximum circulation of about 1000 copies in Kasaragod Taluk. The said newspaper is not having any circulation in the above villages referred at paragraph 2. The said newspapers are_ **W.A.No.32/14** **: 3 :** _not having any wide circulation in the area of operation of the petitioner society.”_ He has also stated in para 5 thus; _“It is submitted that the 'publication of election notification' in two vernacular dailies having wide circulation in the area, as specified in Rule 35-A is a mandatory requirement, as the words used in the said rule is “shall” and not “may”. As the 1[st] respondent has affected the publication of election notification in two newspapers having less circulation, it would vitiate the election process and make the entire process void. The petitioner's statutory right to contest in the election has been effected by the issuance of publication, since it has been issued in newspapers having lesser circulation in the area of operation of the respondent society.”_ 6. At the admission stage itself, the learned single Judge dismissed the writ petition holding that the issues raised involved disputed factual questions and on that reasoning, relegated the appellant to pursue statutory remedies that are available under the Act. It is aggrieved by this judgment, the appeal is filed. 7. According to the learned counsel for the appellant, the illegality pointed out is of a fundamental nature and it being an **W.A.No.32/14** ## **: 4 :** admitted one, the learned Judge should have granted the prayers sought for. However, learned counsel appearing for the 4[th] respondent Sri.George Poonthottam argued that, as on 31/12/2014, when the writ petition was filed, there were 22 candidates in the election fray and that none of these candidates were made parties to the writ petition. According to him, as scheduled, election was held on 11/1/2014 and that in spite of it, none of the elected candidates are made parties to this appeal. Therefore, according to him, no order prejudicially affecting the elected candidates can be passed in this appeal. Yet another contention urged was that the remedy available to the appellant was under Section 69(2)(c) of the Act and the writ petition was rightly held to be not maintainable. On these grounds, counsel sought dismissal of the appeal. The learned Government Pleader, upon instructions, confirmed that publications were effected in the newspapers mentioned above and that in the election held on 11/1/2014, only 1390 votes were polled. 8. We have considered the submissions made by the learned counsel for the parties. **W.A.No.32/14** ## **: 5 :** 9. Having regard to the statutory provisions contained in Section 69(2)(c) of the Act, we are inclined to agree with the learned counsel for the respondents that the appellant has a statutory remedy under the Act. But question would survive whether, on the facts of this case, the appellant should be relegated to pursue that remedy. 10. Rule 35A(3) of the Rules which provide for publication of the election notification read as under; _**“35A. Procedure regarding conduct of election to the committee of Societies by the State Co-operative Election Commission** - The election of the members to the committee of Societies by the State Co-operative Election Commission shall be conducted in the following manner:-_ _(1) xxxxx_ - _(2) xxxxx_ _(3) The State Election Commission shall notify the details of election to the committee of the society, in two vernacular dailies having wide circulation in the area. A copy of the information shall also be affixed on the Notice Board of the head office and the branches, if any, of the Society. The notification shall contain the following particulars:-_ **W.A.No.32/14** **: 6 :** _(i) The number of vacancies to be filled up by election;_ _(ii) Any area or constituency that is specified in the bye-laws from which members are to be elected:_ _(iii) The date on which and the place at which the preliminary notification of the list of members qualified to vote as the voter shall be published;_ _(iv) The dates between which objections shall be filed at the date on which, the hours between which, and the place at which, the objections, if any, shall be scrutinised;_ _(v) The date on which, and the place at which, the final voters list shall be published;_ _(vi) The date on which, the place at which, and hours between which nomination paper shall be filed by the contesting candidate or by his proposer or seconder;_ _(vii) The date and hour when the nomination paper will be scrutinised;_ _(viii) The date on which, the place at which and the hours between which, polling if necessary will take place.”_ 11. It is pellucid from the language of the rule that it is intended to put the members of the society on notice of the election and its schedule, so that they can exercise their rights. **W.A.No.32/14** ## **: 7 :** The words employed by the rule makers and the object and purpose of the rule does not admit of any doubt that the rule is mandatory in nature and its non adherence would result in vitiating the whole election process itself. 12. Another factual aspect that is to be taken note of is that categoric averments have been made in the writ petition about the manner in which the rule has been observed by the 1[st] respondent in its breach. Since the writ petition was dismissed at the admission stage, though the respondents did not have any opportunity to file their counter affidavits, even after receipt of notice in this writ appeal, none of the respondents have chosen to file any counter affidavit disputing the assertions made by the appellant. Thus, the averments in the pleadings of the appellant stand uncontroverted and undisputed. Therefore, the appellant is entitled to have his assertions taken as admitted and the appeal is liable to be decided on that basis. 13. In so far as the scope of interference in an election or its results in a proceedings under Article 226 of the Constitution of India is concerned, it is trite that only in extraordinary and exceptional cases, will a writ court interfere with an election **W.A.No.32/14** ## **: 8 :** process or with the election results and will normally relegate the parties to pursue their remedies before the statutory forum. However, this is not a rigid or inflexible rule and is rather only a self imposed restriction, which cannot be pressed into service to compel this Court to turn a blind eye to patent and admitted illegalities that are of fundamental nature. There are several such cases, where this Court, as also the Apex Court have interfered with election process and invalidated election results. _**Gopalan**_ _**v. Joint Registrar of Co-operative Societies**_ (1985 KLT 446) was a case in relation to election to a Co-operative Society, where, following the judgment in _**Govindan v. Dy. Registrar of**_ _**Co-operative Societies**_ (1983 KLT 1038) and overruling the technical objections, this Court held thus; _“25. Having come to the conclusion that the election is vitiated, the further question is whether the discretion of the court should be exercised by interfering with such an illegal election for the reason that the party can have recourse to a statutory remedy. It is now well-settled that the existence of an alternative remedy, would not, by itself, dissuade a court from exercising its discretion and interfering with the decision, if justice demands it. No doubt, the existence of that remedy would_ **W.A.No.32/14** **: 9 :** _normally be taken note of, before the extraordinary jurisdiction is invoked._ 14. Subsequently, referring to _**Govindan's case** (supra),_ in the judgment in _**Krishnan Ezhuthachan v. Asst. Registrar**_ (1990(1) KLT 695), it was held thus; _19. It is true that this court will not ordinarily entertain an original petition at the intermediate stages of the election process. But this is a rule of discretion and not one of absolute bar in law. As Paripoornan, J. observed in Govindan v. Dy. Registrar of Co-operative Societies, (1983 KLT 1038) this fact should not lead to a situation whereby the concerned authorities or the persons who participate in the elections acting in violation of the statutory command are smug in the belief or an impression that whatever be the degree or gravity of the violation or breach of the mandate of the law, once the election is held this court will be powerless or reluctant to deal with the situation, even if there is any patent transgression of the limits imposed by law._ 15. Similarly, in _**Pankajaksha Panicker v. Venugopalan Nair**_ (1993 (2) KLT 641), it was held that where there is a patent illegality and the grounds on which an action is sought to be sustained is wholly unsustainable and in the context of them being no factual disputes to be resolved, this Court would not **W.A.No.32/14** ## **: 10 :** hesitate to exercise jurisdiction under Article 226 of the Constitution of India. 16. Again, in _**Mathai v. State Co-operative Election Commission**_ (2007(2) KLT 789), following the principles laid down in _**Gujarat University v. N.U.Rajguru**_ (AIR 1998 SC 66) and _**Election Commission of India v. Ashok Kumar**_ {(2000) 8 SCC 216}, this Court held that in exceptional circumstances, this Court can interfere with election process although ordinarily the remedy provided by the statute must be availed of. These principles were again reiterated in the judgment in _**Prakashkumar v. State Co-operative Election Commission**_ (2014(1) KLT 68). 17. Since the facts which are relevant in the context of the issues raised are undisputed, having regard to the above settled principles, we are of the firm view that the learned single Judge was not justified in declining jurisdiction and relegating the appellant to pursue the statutory remedies. 18. One contention urged by the counsel for the Bank was regarding non-joinder of necessary parties. According to him, the successful candidates are necessary parties and in their absence ## **W.A.No.32/14** ## **: 11 :** in the party array, no relief can be granted. Before we answer this contention, we should clarify that this appeal was admitted and notice was ordered on 7/1/2014. It was thereafter that election was held on 11/1/2014. Therefore, anything that took place subsequent to 7/1/2014 or any right claimed on that basis is subject to the result of the appeal. That apart, answer to the contention urged by the counsel for the Bank would depend upon the question whether the elected candidates are necessary parties or whether they are only proper parties. 19. _**Amina Nahna v. State of Kerala**_ (2011(3) KLT 753) was a case where the legality of the entrance examination conducted by an association of private self financing medical colleges was challenged. When the case was heard, one contention raised by the association was non-joinder of successful candidates as parties to the writ petition. Rejecting this contention of the association, this Court held thus; _“51. Another contention that was seriously urged on behalf of the Association which was supported by the candidates who got impleaded was one of non joinder of necessary parties. According to them, the candidates who appeared in the examination held_ **W.A.No.32/14** **: 12 :** _on 14.7.2011 are not parties to this Writ Petition and any order affecting their rights cannot be passed without them in the party array and that therefore, Writ Petition should fail on that ground. In support of this contention, the judgment of this Court in State of Kerala & Anr. v. Rafia Rahim (1978 KLT 369 (F.B)) was relied on._ _52. Rafia Rahim was a case where, Writ Petitions were filed challenging the validity of the then prevailing system of admissions to the Medical Colleges in the State. The manner in which the plea of non joinder was dealt with by the learned Single Judge and the reasons for declining relief to the petitioners, recorded in para.3 of the report, reads as follows:_ _“Considering the objections to non-joinder of the selected students in the Writ Petitions the learned Judge was of the view that the same did not preclude the petitioners from obtaining any reliefs to which they might otherwise be entitled. (vide paragraph 21). This was because, in the first place, the writ petitioners had come to the court before the selections had been finalised and the list of selected candidates published, so that the selections were only, so to say, pendente lite. Secondly there had been interim orders in some of the Writ Petitions, that the finalisation of the list was to be subject to the result of the Writ Petitions and that the candidates selected should be informed either before selection or immediately thereafter, that their selection_ **W.A.No.32/14** **: 13 :** _was subject to the result of the Writ Petitions. In these circumstances, the learned Judge rejected the plea that the Writ Petitions should fail for non-joinder of parties. (vide paragraph 21). Discussing the question of reliefs to which the petitioners were entitled, the learned Judge pointed out that the petitioners were asking for admissions to be made in the light of valid and properly framed rules, and remarked that the task of framing such rules is not easy, and is bound to take time, for collection of statistics and formulation of the appropriate principles. Having regard to the progress of the academic year, to the disturbance and dislocation likely to be caused in upsetting the selections already made, and to the futility of ordering a new selection under a set of rules to be formulated hereafter, so as to benefit the newly selected candidates in the course of the current academic year, the learned Judge felt that beyond declaring that the principle followed in the selection was inequitable, no practical relief could be granted to the petitioners on the facts.”_ _In paragraph 10 of the Judgment, the aforesaid reasoning to decline relief to the petitioner was upheld by the Full Bench thus;_ _“All things considered, we think the learned Judge was right in his conclusion. Interference in our jurisdiction under Article 226 should be in the interest of justice. The position disclosed in the case is that selections to the Medical Colleges have been made and the selected students have joined the classes. The academic term has advanced. The formulation of a new basis of selection and the making of a fresh selection in the light of the_ **W.A.No.32/14** **: 14 :** _same, are bound to take time; and the newly selected candidates cannot be expected to reap any profit or derive any advantage from their late selection and admission to the course. The net result of quashing the selection would be that neither the selected candidates nor those to be substituted for them will benefit by the current year's course of instruction. To avoid such a national waste of budding talent, we think it was a right exercise of discretion by the learned Judge in declining interference by way of quashing the selection. We do not think it necessary to interfere with this part of the learned Judge's judgment.”_ _Dealing with contention of non joinder of necessary parties and differing from the learned Judge, the Full Bench held that the Writ Petition in so far as it impugned the selection already made should fail for non-joinder of the selected candidates. Referring to the interim orders passed making the selection subject to the result of the Writ Petition, the Bench held;_ _“But this would not be a sufficient substitute for the obligation to make the affected candidates parties to the proceeding and to afford them specific and pointed notice of the same. The invalidation of the selection is a matter which vitally affects their interest, and the same cannot be done in writ proceedings to which they are not parties.”_ _Therefore, that was a case where the students were selected, admitted to colleges and the academic year had progressed, unlike this case where only_ **W.A.No.32/14** **: 15 :** _examination has been held and results are declared. 53. On behalf of the candidates, the judgment in State of Assam v. Union of India & Ors. ((2010) 10 SCC 408) was also relied on. Facts of the case show that Union of India filed a writ appeal before the High Court, without impleading State of Assam, which was a party to the Writ Petition and the Division Bench allowed the Writ Appeal fixing monetary liability on the State of Assam. In the appeal filed by it, State of Assam was held to be a necessary party and allowing the appeal, the Apex Court remitted the matter for fresh consideration by the High Court. Similar is the judgment in Public Service Commission, Uttaranchal v. Mamta Bisht ((2010) 12 SCC 204), where selected candidates were held to be a necessary parties in a case where the selection was challenged._ _54. The legal position has been explained in the Judgment in J.S. Yadav v. State of U.P., (2011 (2) KLT SN 67 (C.No.87) SC = (2011) 6 SCC 570)._ _“No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order I R.9 of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non -joinder of necessary party, the petitioner-plaintiff may not be entitled for the_ **W.A.No.32/14** **: 16 :** _relief sought by him. The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity. In case the services of a person are terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the petitioner-plaintiff succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by the petitioner-plaintiff. (Vide Prabodh Verma v. State of U.P., Ishwar Singh v. Kuldip Singh, Tridip Kumar Dingal v. State of W.B, State of Assam v. Union of India and Public Service Commission v. Mamta Bisht.) More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post."_ _On this basis non impleadment of a person who was appointed in the place of the appellant was held fatal to his litigation._ _55. To answer this contention of the Association, it is necessary to examine the nature of the alleged right that has accrued in favour of those who have appeared in the examination held on 14.7.2011. This calls for an examination of the prospectus, a copy of which is Ext.P4. Paragraph IV lays down the procedure of selection. In paragraph 4.1 it is stated_ **W.A.No.32/14** ## **: 17 :** _that merit list of candidates qualified in terms of admission notification and satisfying the terms and conditions of the prospectus will be prepared on the basis of the marks obtained and subject to their eligibility. Para 4.2 states that those “selected for admission shall at the time of admission_ _**”** remit the fee etc. Paragraph V provides for the Entrance Examination and in para 5.13 dealing with the publication of merit list, it is stated thus;_ _“5.13 Publication of merit list: Merit list will be prepared as stated in clause 4.1 above and published in the Official Website of the Association._ _Inclusion of the name of candidate in the merit list is purely provisional and subject to final scrutiny and verification of the claims with original certificates. Also mere inclusion of the name of a candidate in the merit list does not carry with any guarantee for allotment or for admission which is made subject to availability of seats and satisfaction of all conditions including qualifications”. 56. Again in paragraph VI dealing with allotment and admission, as per para 6.1, the candidates are required to exercise their choices/options of colleges and it is stated that allotment will be based on options and category and availability of seats. Paragraph 6.2 provides for the fee payable and interest fee refundable deposit and paragraph 6.3 provides that at the time of admission candidates are to produce the 12 documents specified therein._ _57. These provisions of the prospectus therefore_ **W.A.No.32/14** **: 18 :** _make it clear that, by virtue of inclusion in the merit list published, a candidate does not acquire any indefeasible or vested right to be admitted to any college. Therefore, the facts of this case stand on a totally different footing as compared to the cases dealt with by the Full Bench in the case of Rafia Rahim (supra)._ _58. In this case, petitioner challenges the steps taken by the Association for conducting the entrance examination for admission to its member colleges, on the ground that it is in violation of Act 19 of 2006, and the judgments of this Court. Who are the necessary parties to such a litigation is the question to be considered. The distinction between necessary and proper parties was examined by the Apex Court in the judgment in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & Anr. (AIR 1963 SC 786), and para.7, 9 and 10, it was held thus;_ _“7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding._ _9. The next question is whether the parties whose rights_ **W.A.No.32/14** **: 19 :** _are directly affected are the necessary parties to a Writ Petition to quash the order of a Tribunal. As we have seen, a Tribunal or authority performs a judicial or quasijudicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the Tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the Tribunal's order would be quashed but the right vested in that party by the wrong order of the Tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party._ _10. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order, but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu_ **W.A.No.32/14** **: 20 :** _approach the court for being impleaded therein.”_ _Thereafter, the question considered was answered in paragraph 12 as follows:_ _“To summarise in a writ of certiorari not only the Tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party.”_ _59. Postgraduate Institute of Medical Education and Research v. A.P. Wasan ((2003) 5 SCC 321) was a case where the question decided was whether promotion within Engineering Department were to be made section wise or cadre wise. In that case, before the Apex Court, interveners contended that their career prospects have been jeopardized by the decision of the High Court in a case filed without impleading them. Repelling this contention, it was held thus;_ _“The arguments of the appellants appear plausible but do not bear close scrutiny. It was not necessary for Respondent I to have impleaded the interveners nor can the High Court's decision be criticized because they were not made parties. The grievance of Respondent 1 was against the appellant Institute and its alleged policy to promote Technologist Grade II section wise. It was for the appellant Institute to have justified its action. The_ **W.A.No.32/14** **: 21 :** _justification would serve to protect the interests of other employees if it were legally sustainable. If it is not legally sustainable it must be negated and not hearing of employees who may be affected as a result of the rejection of the justification, would not vitiate such negation. See G.M., S.C Rly. v. A.V.R. Siddhantti, A. Janardhana v. Union of India (SCC at p. 626), and V.P. Shrivastava v. State of M.P. (SCC at p. 763)”._ _In this judgment the Apex Court has relied on A. Janardhana v. Union of India ((1983) 3 SCC 601), where in para 36, contention of non joinder was repelled with the following reasoning;_ _“It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellant. In the Writ Petition filed in the High Court, there were in all 418 respondents. Amongst them, first two were Union of India and Engineer-in-Chief, Army Headquarters, and the rest presumably must be those shown senior to the appellant. By an order made by the High Court, the names of Respondents 3 to 418 were deleted since notices could not be served on them on account of the difficulty in ascertaining their present addresses on their transfers subsequent to the filing of these petitions. However, it clearly appears that some direct recruits led by Mr. Chitkara appeared through counsel Shri Murlidhar Rao and had made the submissions on behalf of the direct recruits. Further an application was made to this court by nine direct recruits led by Shri T. Sudhakar for being impleaded as parties,_ **: 22 :** ## **W.A.No.32/14** _which application was granted and Mr. P.R. Mridul, learned Senior Counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on this short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to G.M., South Central Railway, Secundrabad v. A.V.R. Siddhanti. Repelling a contention on behalf of the appellant that the Writ Petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this court observed that (SCC para 15, p. 341 : SCC (L&S) p.296) the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Arts.14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servants is assailed. In such proceedings, the necessary_ **W.A.No.32/14** **: 23 :** _parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived”._ _These principles were followed by the Apex in its judgment in V.P. Shrivastava v. State of M.P. ((1996) 7 SCC 759)._ _60. The principle therefore is that while necessary parties should be impleaded, it is not so in the case of proper parties. Applying this principle to the facts of this, where challenge is against the actions of Association and failures of the Committee, which are to be justified only by them, I must hold that the candidates who have appeared in the examination held on 14.07.2011 are not necessary parties and their non impleadment is not a fatal defect in this litigation. Even otherwise, 2 candidates got impleaded in this petition and hence, as noticed in A.Janardhana's case (supra), this is not a case where such candidates went unrepresented. Therefore, this contention also has to be rejected and I do so._ **W.A.No.32/14** **: 24 :** _61. The contention that the petitioner has no locus standi to maintain this Writ Petition was dealt with and rejected in the interim order dated 13.7.2011 in I.A. No.11272/2011 and the relevant part of the order, reads:_ _“15. Learned senior counsel then contended that the petitioner is not an applicant in response to Ext.P4 prospectus and therefore lacks locus standi, to file this Writ Petition. The unrebutted averments in the Writ Petition would show that the petitioner has been included in the rank list published by the Commissioner for Entrance Examination. It is also averred that if the entrance examination of the Association is ultimately held to be illegal, the Association will have to admit students from the rank list in which the petitioner is included and if so she has every chance of getting allotted to the member colleges of the 3rd respondent. In the light of these averments, I am unable to reject the Writ Petition on the ground that the petitioner lacks locus standi.”_ _This answers the contention of the Association.”_ These principles are a complete answer to the contention urged and therefore we have no hesitation to reject it. 20. We are left with the question regarding the legality of Ext.P2 notification. Rule 35A(3) of the Rules mandate publication of the election notification in dailies “having wide circulation in the area”. Even apart from the reality that Karaval Evening Daily **W.A.No.32/14** **: 25 :** and Thejus chosen by the Election Commission, for reasons which are inexplicable and unexplained, are insignificant ones in the fourth estate, the relevant averments made in the pleadings are remaining uncontroverted, despite opportunity for the same. Therefore, one does not have to labour any more to conclude that the publication effected was not in newspapers having wide circulation in the area. That probably explains the reason why only 1390 votes were polled. Therefore, there is non compliance of Rule 35A(3) of the Rules in this case. 21. In this context, Sri.Jawahar Jose, the learned counsel for the appellant, referred us to _**Special Deputy Collector, Land Acquisition v. J.Sivaprakasam and others**_ {(2011) 1 SCC 330}. In that judgment, the Apex Court considered the contention regarding non compliance of section 4(1) of the Land Acquisition Act, 1894, which required publication of the preliminary notification in newspapers “circulating in that locality”. In this judgment, the legal principles governing publication in newspapers have been elucidated thus; _“17. Section 4(1) of the Act relates to publication of preliminary notification and relevant portion thereof is extracted below:_ **: 26 :** ## **W.A.No.32/14** _“4. Publication of preliminary notification and powers of officers thereupon - (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.......” Section 4(1) of the Act requires publication of the preliminary notification by three modes: (i) publication in the Official Gazette (ii) publication in two daily newspapers circulating in the locality, at least one of which being in the regional language; and (iii) causing public notice of the substance of such preliminary notification to be given at convenient places in the locality. 18. The controversy in this case relates to the second mode, that is, publication in “two daily newspapers circulating in that locality”. The provision does not use the words “two daily newspapers having a wide circulation in the locality”. In the absence of any definition or explanation in the statute, the question is as to how should the words “circulating in that locality”_ **W.A.No.32/14** **: 27 :** _be understood? Do they refer to newspapers having the widest circulation in the locality? Or do they refer to newspapers which are regularly sold or circulated in the locality, irrespective of numbers, even if their circulation figures are very modest?_ _19. If there are nine newspapers circulating in the locality, having a market share of 25%, 20%, 15%, 12%, 10%, 8%, 5%, 3% and 2% of the total daily sales of regional newspapers in the locality, whether all of them can be termed as “newspapers circulating in the locality” or whether only newspapers with a particular minimum percentage can be described as “newspapers circulating in the locality”. Can it be said that the newspapers having 5%, 3% and 2% of total sales of newspapers, are not newspapers circulating in the locality? Can it be said that only the newspapers having the maximum market share of 25% or 20% or 15% of the total sales in the locality, could be described as newspapers circulating in the locality? Whether the total circulation figures of the newspaper are relevant or whether the circulation figures in the locality alone are relevant?_ _20. From a newspaper's point of view, if its total circulation is 40,000 and out of it circulation_ **W.A.No.32/14** **: 28 :** _figure for Chennai is 21,000, it can very well say that its major circulation is in Chennai. But from the reader's point of view, if the total number of regional newspapers sold in Chennai is a million, a newspaper having a circulation of 21,000 (which is around 2%) may not be considered to be a newspaper with a wide circulation in the locality. Which perspective should be preferred? If Section 4(1) is to be interpreted as requiring publication in two newspapers having reasonably wide circulation, as held by the High Court, what should be the guidelines to determine “reasonably wide circulation”? Where should the line be drawn and whether any line should be drawn are questions that may arise, if we read the words “newspapers circulating in that locality” as “newspapers having wide circulation in that locality”. 21. The purpose of publication of the notification is twofold: First is to ensure that adequate publicity is given so that the landowners and persons interested will have an opportunity to file their objections under Section 5-A of the Act. Second is to put the landowners/occupants on notice that government officers will be entering upon the property for carrying on the activities enumerated in Section 4(2) of the Act. Section 4(1), before its_ **W.A.No.32/14** **: 29 :** _amendment in 1984, required publication of the preliminary notification only in the Official Gazette and public notice of the substance of the notification at convenient places in the locality. 22. This Court, in M.P.Housing Board v. Mohd. Shafi explained the object of issuing a notification under Section 4 of the Act thus:_ _“8...the object of issuing a notification under section 4 of the Act is twofold. First, it is a public announcement by the Government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the Government for the 'public purpose' mentioned therein; and secondly, it authorises the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the 'public purpose' for which the acquisition proceedings are being commenced but also the 'locality' where the land is situate with as full a description as possible of the land proposed to be acquired to enable the 'interested' persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections, etc. since it is open to such persons to canvass the non-suitability of the land for the_ **W.A.No.32/14** **: 30 :** _alleged 'public purpose' also. If a notification under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition bad.”_ _23. By Amendment Act 68 of 1984, Section 4 (1) was amended introducing the additional requirement relating to publication of the notification in two daily newspapers circulating in the locality. The purpose of requiring such newspaper publication is to give as wide a publicity to the notification as possible, as the State Gazettes do not have a wide circulation and causing public notice of the substance of the notification at convenient places in the locality would give notice only in specific pockets in the locality. The legislature therefore provided for publication in two newspapers (of which at least one being in the regional language) to have a wider reach. Having regard to the object and purpose of the provision, it is evident that publication should be in newspapers which have a reasonably good circulation in the locality. If the publication is to be made in obscure newspapers having only token or insignificant circulation, either to cut the cost of publication or by way of political or official patronage, that will_ **W.A.No.32/14** **: 31 :** _defeat the very purpose of providing for publication in newspapers._ _24. On the other hand, if the words “newspapers circulating in that locality” are to be interpreted in a purely literal and normal sense, they would mean newspapers having a regular and steady circulation among the general public in the locality, irrespective of the number. In that sense even a newspaper having 2% to 3% market share out of the total circulation figures for regional newspapers sold in the locality, can be considered as a newspaper “circulating in the locality”. Therefore, where there is compliance with the requirement relating to publication in two daily newspapers circulating in that locality (one of which at least should be in the regional language) in a technical or literal sense, but it is found that those newspapers have only a circulation share of 2% to 3% of the total number of newspapers sold in the locality, it may not be possible to mechanically invalidate the entire acquisition, on the ground that the two regional newspapers in which the notification was published were not “circulating in that locality”. 25. We have held that the object and purpose of the amended Section 4(1) of the Act is to provide for publication of the preliminary notification in two daily newspapers having_ **W.A.No.32/14** **: 32 :** _reasonably wide circulation in the locality so that people (persons interested) in that locality may become aware of the proposals for acquisition. We have also held that publications, in two newspapers having regular and steady circulation, but having a market share of only 2% to 3% of the total newspapers cannot invalidate the acquisition proceedings automatically, on the ground that such publication violates the requirement of Section 4(1) relating to newspaper publication. As the said two findings are slightly contradictory, it is necessary to harmonise the consequences._ _26. This leads us next to the consequences of publication of the notification in two newspapers having reasonably wide circulation and consequences of bona fide publication of the notification in two newspapers which do not have a wide circulation in the locality._ _27. If there is failure to publish in two daily newspapers or if the publication is in two newspapers that have no circulation at all in the locality, without anything more, the notification under Section 4 (1) of the Act and the consequential acquisition proceedings will be vitiated, on the ground of non-compliance with an essential condition of Section 4 (1) of the Act._ **: 33 :** ## **W.A.No.32/14** _28. If the two newspapers carrying the publication of the notification have reasonably wide circulation in the locality (apart from the publication of the notification in the gazette and causing public notice of the substance of the notification to be given at convenient places in the locality), then the requirements of Section 4 (1) are complied with and all persons concerned in the locality shall be deemed to have notice of the notification. (For this purpose, the publication need not be in newspapers having the widest or largest circulation, but it is sufficient if the publication is in newspapers having reasonably wide circulation.) In that event, neither the notification under Section 4 (1), nor the consequential acquisition proceedings would be open to challenge, on the ground of violation of Section 4 of the Act. 29. If the newspapers in which the notification is published were circulating in the locality, but did not have a reasonably wide circulation in the locality, then neither the notification under Section 4(1) nor the consequential acquisition proceedings, will become vitiated automatically. If the person aggrieved, apart from demonstrating that the two newspapers did not have reasonably wide circulation in the locality, also asserts that as a consequence, he did not_ **W.A.No.32/14** **: 34 :** _have notice of the proposed acquisition that was provided for in Section 4(1) of the Act, in the absence of evidence to the contrary, the acquisition to the extent of the land of such person will be vitiated. But if such assertion is rebutted by the acquiring authority by placing evidence to show that the person concerned had in fact notice (as for example where he participated in the enquiry under Section 5 -A of the Act) the acquisition will not be vitiated on the ground of violation of Section 4-A of the Act.”_ 22. In the light of the facts noted and the legal principles, we can safely conclude that in this case, there is non compliance of Rule 35A(3) of the Rules and that it being an irregularity, which is fundamental in nature, would render everything that followed, including the election and its results, vitiated and illegal. Necessarily, the judgment under appeal has to be set aside and the appeal has to be allowed and we do so. In the result, Ext.P2 notification is set aside and the election held on 11/1/2014 in pursuance of Ext.P2 notification is declared null and void and the writ appeal is allowed as above. The Registrar of Co-operative Societies shall issue orders appointing an Administrator for the society and we direct that election shall ## **W.A.No.32/14** **: 35 :** be conducted and elected committee members shall assume office at any rate within six months from the date of receipt of a copy of this judgment. No costs. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** Rp **//True Copy//** **PA TO JUDGE**