P. M. Rajan v. Returning Officer, Venkurinji Service Co-operative Bank Ltd. & Sabu Raj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930** **WP(C).No. 9286 of 2008(E)** **-------------------------------------** **PETITIONER:** ## **-------------------** ## **P.M. RAJAN,** **PALATHINKAL, VECHOOCHIRA P.O., MEMBER, VENKURINJI SERVICE CO-OPERATIVE BANK LTD., MUKOOTTUTHARA P.O., PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.GEORGE POONTHOTTAM.** **RESPONDENTS:** **-----------------------** **1. THE RETURNING OFFICER, VENKURINJI SERVICE CO-OPERATIVE BANK LTD., MUKOOTTUTHARA P.O., PATHANAMTHITTA DISTRICT.** **2. VENKURINJI SERVICE CO-OPERATIVE BANK LTD MUKOOTTUTHARA P.O., PATHANAMTHITTA DISTRICT, REPRESENTED BY THE SECRETARY.** **3. SABU RAJ, MANDANMAKKIL, CHATHANTHARA P.O., PATHANAMTHITTA DISTRICT.** **BY SR. GOVT. PLEADER SMT. ANU SIVARAMAN - R1, ADV. SRI.N.RAGHURAJ - R3, SMT.K.AMMINIKUTTY - R3.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.9286 of 2008-E = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25[th ] day of March, 2008. ## JUDGMENT 1. The petitioner and the third respondent submitted nomination papers for election on the basis of Ext.P1 notification issued by the State Co-operative Election Commission. The first respondent is the Returning Officer. The constituency is one where a seat is reserved for members belonging to the Scheduled Castes and Scheduled Tribes. Ext.P2 is a copy of Form No.36 nomination paper, though Form No.37 is also imprinted at the foot of the first page of Ext.P2. 2. It is not in dispute that the petitioner did not sign the declaration to be made by the candidate as part of the nomination paper. The WP(C)9286/08 -: 2 :- last date for submission of nominations was 13-2-2008. On 14-3-2008, on scrutiny, the nomination paper of the petitioner was rejected on the ground that he had not signed the declaration as part of the nomination paper. This is under challenge. 3. The contesting third respondent is the only surviving candidate in the constituency and therefore, is liable to be declared elected. He has filed a counter affidavit. 4. The learned counsel for the petitioner raised, fundamentally, two arguments. Firstly, he stated that the declaration of the petitioner as a scheduled caste and scheduled tribe candidate having been made, the absence of declaration that is required of a candidate can be treated only as an omission and that the declaration which he has signed asserting his caste/tribe status can be treated as sufficient declaration. It is also pointed out WP(C)9286/08 -: 3 :- that he had also signed in the first page of Ext.P2 immediately after giving the details of the candidate, the proposer and the secondor. The second argument is that even if the declaration was indispensable, it could have been treated as a curable defect and the petitioner should have been given an opportunity by the Returning Officer to cure the defect and make the declaration because, the declaration is not a qualification and the absence of declaration does not result in disqualification. On the strength of the decision of the Apex Court in Mathura Prasad v. Ajeem Khan [(1990) 3 SCC 659], it was argued that the petitioner was entitled to an opportunity to rectify the mistake which was an error on his part, to have not made the declaration, while submitting the nomination papers. 5. Per contra, the learned counsel for the contesting third respondent argued that the WP(C)9286/08 -: 4 :- declaration by the candidate is an integral part of the nomination paper, without which it cannot be considered that a nomination has been properly made. It is argued that the absence of declaration is not a curable defect and is not one of those matters which the Returning Officer could have permitted to rectify. It is accordingly urged that the rights of parties have crystallized on the rejection of the nomination and that the matter may not be interfered with. Apart from the decision of the Apex Court in Ratan Anmol Singh v. Ch. Atma Ram (AIR 1954 SC 510), reference has been made to the decision of this Court in Santhosh v. Joint Registrar [1994 (2) KLT 141] which was affirmed by the Division Bench in Ali Bava v. Returning Officer [2001 (2) KLT 672]. 6. The election in question is covered by Rule 35A of the Kerala Co-operative Societies Rules, 1969. Sub-rule 6 contains different WP(C)9286/08 -: 5 :- clauses. Clause (a) provides that the nomination of the candidates for election shall be made in Form No.36 which shall be supplied by the Returning Officer. The making of such a rule is with the support of the relevant provision in the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the “Act”. Therefore, Form 36 is a statutory form. Clause (b) provides, among other things, that 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. Adverting to Form 36, it can be seen that if the candidate is contesting in the seat reserved for SC/ST candidate, he shall also make a declaration that he is included in a particular scheduled caste and religion and that he is qualified to contest the election reserved for scheduled caste community in the election in question. The petitioner has, admittedly, signed in the declaration to be WP(C)9286/08 -: 6 :- made by him that he is qualified to contest for the election in the seat reserved for scheduled caste and scheduled tribe candidates and that he is included in a particular caste. 7. The rules prescribe a statutory form and notice that a nomination paper shall also contain a declaration signed by the candidate proposed for the election to the effect that he is willing to stand for the election. That declaration is, therefore, required to be signed. The declaration in terms of Rule 35A (6)(b) is to the effect that the candidate is willing to stand for election. The declaration made by the petitioner that he is qualified to contest in the seat reserved for scheduled caste and scheduled tribe candidate and that he is included in a particular scheduled caste or scheduled tribe, such declaration does not contain any statement that he is willing to stand for election. By submitting the nomination with his signature and with the WP(C)9286/08 -: 7 :- declaration that he belongs to a scheduled caste/scheduled tribe and that he is qualified to contest for election in the seat reserved for that category, it cannot be assumed that he has made a declaration as to his willingness to stand for election even though he might have demonstrated it. The declaration that is required is of the willingness to contest the election. That requirement is statutory. It is specific. Bereft of that, the nomination paper cannot be treated as a valid nomination. 8. The last point of time for submission of nominations was 2 p.m. on 13-3-2008. The validity of the nomination has to be determined at 11 a.m. on 14-3-2008 with reference to its validity, as available at the time of submission of the nomination paper on 13-3-2008. Therefore, in the absence of any declaration being available on the nomination paper presented on 13-3-2008, that nomination WP(C)9286/08 -: 8 :- paper cannot get transformed into a valid nomination to be accepted on 14-3-2008. That apart, in the statutory Rule 36, it is also the requirement that the candidate has to declare that he is not disqualified under the Act, Rules and bye-laws of the society. That declaration has a direct nexus to the requirement of Rules 35A(6)(d)(ii) and (iii) which provide that no member shall be nominated for election to fill a seat in the committee, if he 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 is disqualified to be a member under the provisions of the Act and rules. In a law relating to election, when it is prescribed that there shall be a declaration by the candidate that he is not disqualified, the absence of such declaration invalidates the nomination paper and it cannot be treated that a valid nomination was made. Fair support to WP(C)9286/08 -: 9 :- this position could also be drawn from the decision of the Apex Court in Ratan Anmol Singh (supra). For the foregoing reasons, the writ petition fails. The same is accordingly dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/100408