SOPHIYA K.S v. KERALA STATE CO-OPERATIVE ELECTION COMMISSION and OTHERS

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ## **`THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944`** ## **`WP(C) NO. 2538 OF 2023`** ## **`PETITIONER:`** ``` SOPHIYA K.S AGED 46 YEARS, D/O SAMUVEL KOCHUMOOTTIL VEEDU PANICKANKUDI, IDUKKI, PIN – 685 604. ``` ``` BY ADVS. C.S.AJITH PRAKASH T.K.DEVARAJAN M.B.SOORI BABU M. ANCY THANKACHAN NIDHIN RAJ VETTIKKADAN HAARIS MOOSA GOURI KAILASH KRISHNENDU.D ``` ## **`RESPONDENTS:`** - `1 KERALA STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, OFFICE OF THE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM, PIN – 695 001.` ``` 2THE IDUKKI DISTRICT POLICE COOPERATIVE SOCIETIES LIMITED NO. 1-490 REPRESENTED BY ITS SECRETARY, OFFICE OF THE IDUKKI DISTRICT POLICE COOPERATIVE SOCIETIES LIMITED NO. 1-490, IDUKKI COLONY P.O., CHERUTHONI, IDUKKI DISTRICT, PIN – 685 001. 3THE SECRETARY IDUKKI DISTRICT POLICE COOPERATIVE SOCIETIES LIMITED NO. 1-490RETURNING OFFICER OFFICE OF THE IDUKKI DISTRICT POLICE COOPERATIVE SOCIETIES LIMITED NO. 1-490, IDUKKI COLONY P.O., CHERUTHONI, IDUKKI DISTRICT, PIN – 685 001. ``` ``` WP(C) NO.2538 OF 2023 2 ``` ``` 4THE ELECTORAL OFFICER - ASSISTANT REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THODUPUZHA , PIN – 685 584. ``` ``` 5THE RETURNING OFFICER, (A) UNIT INSPECTOR (1-490, IDUKKI DISTRICT POLICE CO-OPERATIVE SOCIETIES LIMITED), OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THODUPUZHA , PIN – 685 584. BY ADVS. C.M.NAZAR P.C SASIDHARAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.2538 OF 2023 3 ``` ## **JUDGMENT** Petitioner has approached this Court being aggrieved by the fact that her nomination to the election of the Idukki District Police Co-operative Society to be held on 05-02-2023, has been rejected by the Returning Officer on the ground that the petitioner is a surety in respect of a loan availed by another member of the Society namely one Aneesh S.Manayath and despite notice, the petitioner has not cared to clear the liability. According to the Returning Officer, the petitioner was disqualified in terms of Rule 44(1)(c) of the Kerala Co-operative Societies Rule, 1969 (hereinafter referred to as ‘the Rules’). 2. Adv. C.S.Ajith Prakash., the learned counsel appearing for the petitioner would submit that a reading of Rule 44 (1)(c) and Rule 44(2) of the Rules, would clearly indicate that disqualification, if any, under Rule 44(1)(c) of the Rules would be attracted only if the petitioner has received a notice demanding the clearance of the ``` WP(C) NO.2538 OF 2023 4 ``` defaulted amount and when, despite the passage of one month after the date of receipt of the notice, the person concerned fails to clear the liability. It is submitted that the petitioner in this case did not receive any notice and therefore the disqualification in Rule 44(1)(c) was not attracted in the case of the petitioner. Reference is made in this regard to the judgment of this Court in W.P. (C)No.3375/2018, where this Court has held that unless the surety/guarantor is issued with a notice demanding payment, the question of rejection of the nomination paper does not arise. The learned counsel appearing for the petitioner also places reliance on the judgment of a learned Judge of this Court in **Salim v. Joint Registrar; 1998 (2) KLT 665** , where this Court has taken the view that unless the letter in question has been issued to a surety by a registered post, the question of disqualification does not arise. It is submitted that the said decision is also authority for the proposition that it is for the person who asserts the service of notice to prove that such notice had in fact been served. ``` WP(C) NO.2538 OF 2023 5 ``` 3. Adv.P.C.Sasidharan, the learned counsel appearing for the respondent Society would submit that this is a case where the Returning Officer had correctly rejected the nomination of the petitioner. It is submitted that the petitioner was a surety in respect of a loan availed by another member of the Society. It is submitted that as early as in the month of March, 2022, a demand notice had been issued to the petitioner, calling upon the petitioner to remit the amounts due in respect of the loan availed by one Aneesh S.Manayath. It is submitted that the letter in question was sent by a registered post and reference in this regard is made to the postal receipt produced along with the counter affidavit. It is also submitted that on a proper consideration of the provisions contained in Rule 44(1) (c) and Rule 44(2) of the Rules, it is clear that the requirement of notice is only in respect of a disqualification incurred either after the election or on the date of election and does not apply in a situation where the nomination itself was rejected on the account of the disqualification contained in Rule 44(1)(c) of the Rules. ``` WP(C) NO.2538 OF 2023 6 ``` 4. The learned counsel appearing for the petitioner would rely on the judgment of a learned Judge of this Court in **Santhosh v. Joint Registrar; 1994 (2) KLT 141,** to content that the right of a candidate to contest in an election is a valuable right and even if there is an alternative remedy available to the petitioner after the election, the same cannot stand in the way of an arbitrary rejection of nomination being questioned under Article 226 of the Constitution of India. It is submitted that the notice issued to the petitioner is not issued in the address shown in Ext.R2(b) and it was seen issued to the petitioner at her official address. It is also pointed out that the disqualification is on the basis of information supplied by the Secretary of the Society, who himself is a candidate for the election and therefore he was an interested person, who gave wrong information to the Returning Officer regarding the alleged disqualification of the petitioner. 5. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent -Society, I am of the view that the petitioner ``` WP(C) NO.2538 OF 2023 7 ``` has not made out the case for interference in this stage. It is seen from Ext.R2(c) that a notice was sent to the petitioner by a registered post. Though it is seen that the notice was issued at the official address of the petitioner and not at the residential address shown in Ext.R2(b), it is difficult to accept at this stage that the demand notice was not received by the petitioner. Secondly I am of the opinion that the learned counsel appearing for the respondent-Society is right in contending that the provisions contained in sub-rule (2) of Rule 44 of the Kerala Co-operative Societies Rule, appears to apply in a case where person acquires a disqualification on the date of the election or subsequently after becoming a member of the Managing Committee of the Society. A reading of the provisions contained in Rule 44(1)(c) of the Kerala Co-operative Societies Rule, makes it clear that once there is a default committed either by a borrower or by a surety, the disqualification attracts without anything further. Since it is not disputed before me that the petitioner was a surety for the loan availed by another ``` WP(C) NO.2538 OF 2023 8 ``` borrower and since prima facie, it appears that a notice was sent to the petitioner by registered post, in the month of March, 2022, I am of the view that the petitioner has not made out any case for interference under Article 226 of the Constitution of India. The question as to whether the petitioner actually received the notice etc. are matters to be considered in an election petition under Section 69 (D) of the Kerala Co-operative Societies Act. The writ petition fails and it is accordingly dismissed. Sd/- **GOPINATH P. JUDGE** ats ``` WP(C) NO.2538 OF 2023 9 ``` ## **`APPENDIX OF WP(C) 2538/2023`** ``` PETITIONER’S EXHIBITS ``` - `Exhibit P1 THE TRUE COPY OF THE ELECTION NOTIFICATION NO. OI/2103/2022/E(1)S.C.E.C DATED 14-12-2022` - `Exhibit P2 THE TRUE COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER` - `Exhibit P3 THE TRUE COPY OF THE RECEIPT IN FORM NO. 37 ISSUED TO THE PETITIONER` - `Exhibit P4 THE TRUE COPY OF THE LETTER NO. ARGIDK/38/2022-UI DATED 20-01-2023 ISSUED BY THE RETURNING OFFICER` - `Exhibit P5 THE TRUE COPY OF THE JUDGMENT DATED 05-02-2018 IN W.P.(C) NO. 3375/2018` - `RESPONDENT’S EXHIBITS` - `Exhibit R2(a) THE LIST OF CONTESTING CANDIDATES FOR THE ELECTION` - `Exhibit R2(b) THE TRUE COPY OF THE BOND EXECUTED BY THE PETITIONER` - `Exhibit R2(c) THE TRUE COPY OF THE NOTICE ISSUED AGAINST THE PETITIONER ON 25/03/2022` - `Exhibit R2(d) THE TRUE COPY OF THE POSTAL RECEIPT ISSUED BY THE POSTAL DEPARTMENT`