Joseph V.T. and others v. Returning Officer, Odenthode KSHEEROLPADAKA SAHAKARANA SANGHAM, Ltd. and Odenthode KSHEEROLPADAKA SAHAKARANA SANGHAM, Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930** **WP(C).No. 16360 of 2008(V)** - **---------------------------------------** **PETITIONERS:** - **---------------------** **1. JOSEPH.V.T, MEMBER NO.2, VALLIKKUNNEL P.O, ODENTHODE, KANNUR.** **2. MANOJ.K.P, MEMBER 441, KUNJOZHATHU PUTHALATH HOUSE, MANATHANA P.O.** **3. SUNNY.K.J, MEMBER NO.813, KARIMALA HOUSE MANATHANA P.O, MADAPPURACHAL.** **4. ROSAKKUTTY JOSEPH, MEMBER NO.711, KUNNUMPURATH HOUSE, MANATHANA P.O, ODENTHODE.** **5. JOSE, MEMBER NO.418, KURUVAMPLACKAL HOUSE, MANATHANA P.O, ODENTHODE.** **6. THOMAS.V.S, MEMBER NO.573, VALLIYIL HOUSE, MANATHANA P.O, MADAPPURACHAL.** **7. LISSAMMA.M, MEMBER NO.770, MANJAPPALLI HOUSE, MANATHANA P.O, ODENTHODE.** **8. TOMY.A.J., MEMBER NO.848, ADICHILAMACKAL HOUSE, MANATHANA P.O, MADAPPURACHAL.** **9. OUSAPACHAN CHIRAKKAL, MEMBER NO.253, MANATHANA P.O, CHANAPPARA.** **10. KUNJAMAN PAL, MEMBER NO.600 PAL HOUSE, MANATHANA P.O, MADAPPURACHAL.** **11. BABY.K.D, KALAPPURAKKAL HOUSE, MANATHANA P.O., MADAPPURACHAL.** **12. P.V.CHACKO, PANTHAPLACKAL HOUSE, MANATHANA P.O, ODENTHODE.** **W.P.(C). NO.16360/2008-V:** **13. A.T.JOY, ADATHAZHA HOUSE, MANATHANA P.O, ODENTHODE.** **14. THOMAS.A.C, ADATHAZHA HOUSE, MANATHANA.P.O.** **BY ADV. SRI.P.N.MOHANAN.** ## **RESPONDENTS:** ## **-----------------------** **1. RETURNING OFFICER, TO ODENTHODE, KSHEEROLPADAKA SAHAKARANA SANGHAM, LTD.C 66 D, APCOS, ODENTHODE P.O., MANATHANA- 670 677, KANNUR. NOW WORKING AS EXTENSION OFFICER, DAIRY EXTENSION OFFICE, IRITTY, KANNUR.** **2. ODENTHODE KSHEEROLPADAKA SAHAKARANA SANGHAM, LTD. C 66 D, APCOS, ODENTHODE P.O.. MANATHANA- 670 677, KANNUR, REPRESENTED BY SECRETARY.** **BY GOVT. PLEADER SMT. ANU SIVARAMAN, ADV. SRI.M.SASINDRAN - R2.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Thottathil B. Radhakrishnan, J.** ================================== W.P.(C)No.16360 of 2008 ================================== Dated this the 11[th] day of June, 2008. ## **JUDGMENT** Fifteen persons, who submitted nominations for election to the committee of the second respondent, a Primary Milk Co-operative Society, are the writ petitioners. The draft list of members was to be published on 14-5-2008 and the final voters list to be on 21-5-2008. Nomination papers were to be submitted on 26-5-2008. Scrutiny of nomination was on 27-5-2008. The last date of withdrawal of nominations was on 28-5-2008 and the election, if necessary, was to be held on 23-6-2008. 2. This writ petition is filed on 2-6-2008 after the rejection of the nomination of the petitioners. 3. Two contentions are raised. Firstly, it is contended that the rejection of the nomination WPC16360/08 ## -:2:- papers is illegal. The second contention is that the name of the father or husband of each member is not shown in the voters' list and therefore it is in violation of Rule 35(3)(b) of the Kerala Cooperative Societies Rules, 1969, hereinafter referred to as the “Rules”. 4. Rule 35(3)(c)(i) provides that nominations of the candidates for election shall be made in the form prescribed by the society. Petitioners do not dispute that the form prescribed by the society contains two sheets, one in Malayalam and the other in English. The said form requires the details in terms of the statute and an affidavit to be sworn regarding various aspects, including the fact that the candidate is not disqualified on different grounds. With no dispute that this is the form that is prescribed, it is the requirement of law that the nomination has to be properly submitted as enjoined in the said prescribed form. Each among WPC16360/08 ## -:3:- the petitioners signed the second sheet which is to be the affidavit but did not enter any details, including the deponent's name and the further identity of the deponent like father's name etc. The first respondent Returning Officer admits that those affidavits were signed by him thereby accepting that the affidavits were signed in his presence. But, on scrutiny, the nominations were rejected on the ground that the affidavit did not contain the description of the deponent. The argument advanced on behalf of the petitioners is that the first sheet of the nomination paper, containing all the details of each of the candidates being available, the defect in the affidavit have to be passed off as only an incorrect description and therefore the nomination papers should have been held not liable to be rejected in terms of Rule 35(3)(e) of the Rules. A perusal of the affidavit which is part of the nomination shows that they are blank printed forms WPC16360/08 ## -:4:- with only the signature of certain persons. Even if it is admitted that the signature above the word “deponent” is that of the petitioners and the Returning Officer is not disputing that the signature of affirmation has been put by him, it cannot lead to the conclusion that the Returning Officer should also be held bounden of having identified each of the petitioners as the person submitting the nomination, thereby treating the affidavit as that of the respective candidate. Even if such a view is taken, Ext.P5 would still remain with an affidavit which is incomplete and improper regarding the particulars disclosing the identity of the deponent and also regarding the identity of the election for which the nomination is filed, which is again a particular to be entered in the first among the paragraphs in the printed form affidavit. Not only that, when a statutory form is prescribed, it has to be conformed with. The power to prescribe a form for the nomination is WPC16360/08 ## -:5:- conferred on the committee by virtue of Rule 35(3) (c)(i). That power, having been indisputably exercised, it is not for the petitioners to contend that the said power does not include the power to insist on affidavit. Whatever the petitioners may call as an affidavit, is an integral part of the nomination paper as prescribed by the committee. Not only that, the prescription of such a form by including an affidavit in it, was not challenged at any point of time by the petitioners before the submission of nomination. Obviously therefore, the petitioners are not entitled to turn round to contend that the affidavit is not a part of the nomination paper. In that view of the matter, the rejection of the nomination paper cannot be found against. 5. Another submission raised touching the nomination paper is that the statutory rules do not prescribe an affidavit and therefore it is WPC16360/08 ## -:6:- incompetent to insist on an affidavit. As already noticed, an affidavit has been incorporated as part of the nomination form, by the committee, in its wisdom, is available within the format of Rule 35 (3)(c)(i) and hence that contention also fails. 6. The second contention is that Ext.P2 final list does not contain the name of father or husband of each member and therefore the said list is void as violative of the prescription in Rule 35(b). The decision of this Court in **Thankappan and others** ## **- v. Co operative Tribunal and others (1979 KLT 528)** has been cited to argue that this Court has noticed that the provisions of Rule 35 are mandatory and, in as much as the grounds to set aside the election is not prescribed by the Rules, all the rules relating to election as are contained in the Act and Rules are mandatory and violation of Rule 35(b) is sufficient to upset the final list of voters and WPC16360/08 -:7:- this Court would therefore be justified in interfering even at this stage. The decision in ## **- Devassy v. Asst.Registrar of Co operative Societies** **(1976 KLT 40)** was cited to point out that a proper list _sine qua non_ for holding an election. Still **-** further, **Joseph v. Kerala Co op.Milk Society Ltd.** **(1994 (1) KLT 828)** (Ext.P3) is pithily relied upon to state that in the absence of requisite particulars, elections are likely to be prejudiced, confusing in the process, the candidates, their agents and voters and that the election cannot proceed on the basis of such a list. 7. The mandatory nature of the provisions contained in Rule 35 regarding the manner of conducting an election in a co-operative society as enunciated in **Thankappan's** case ( _supra_ ) emphasizes the requirement of a list and without that, there cannot be proper election. The decision in WPC16360/08 ## -:8:- **Devassy's** case ( _supra_ ) also points out that no election could be democratically held without a proper list of voters. **Joseph's** case ( _supra_ ) also shows that election cannot be proceeded without a proper list, which, in the absence of particulars, is likely to prejudice the electoral process. Bearing these principles in mind, if one adverts to Ext.P2 list, it can be seen that the total number of voters are only 239. The petitioners had the opportunity to object to the preliminary list if the said list was vague and that the identity of the persons enlisted as members require further clarification. No such objection was filed to the preliminary voters list. Not only that, even in the writ petition, no one among the 239 listed in Ext.P2 is even indicated as one who cannot be identified by the petitioners. The society is only a milk co-operative society and all the members would, normally, know each other. It is obviously WPC16360/08 ## -:9:- therefore that no objection was raised, either to the preliminary voters list or to the final voters list, at any point of time. The petitioners thus, fairly, have no case that they cannot identify the 239 persons enlisted in Ext.P2. The question of prejudice being caused in the election is totally excluded. In that view of the matter, it has also to be noticed that it was on the basis of Ext.P2 final list of voters that the petitioners submitted their nominations and they cannot be heard to turn round after the rejection of their nominations, to challenge Ext.P2 voters list on the ground that the identity of the parent or husband of each of the voter is not disclosed in Ext.P2. Hence, that ground also fails. For the aforesaid reasons, this writ petition is dismissed. sl/13/6/2008 **Thottathil B.Radhakrishnan, Judge.**