IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23248 of 2009(A)
1. JIJO KURIAN, S/O.KURIAN,
... Petitioner
Vs
1. RETURNING OFFICER, SALE OFFICER NO.3,
... Respondent
2. ASSISTANT REGISTRAR (GENERAL),
3. AMBALAPAD SERVICE CO-OPERATIVE BANK LTD.
4. C.R.VAREED, CHITTILAPALLI HOUSE,
For Petitioner :SRI.C.S.AJITH PRAKASH
For Respondent :SRI.GEORGE POONTHOTTAM
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :19/08/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 23248 OF 2009 (A)
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Dated this the 19th day of August, 2009
J U D G M E N T
Petitioner is a member of the 3rd respondent, a Co-operative
Bank. The election to the Board of Directors of the Bank is
scheduled to be held on 23rd of August, 2009. As per the schedule
fixed in the election notification, nominations were to be
submitted by 10/8/2009 and its scrutiny was on 11/8/2009.
Petitioner submits that he submitted his nomination from Ward
No.3. It is stated that during the course of the scrutiny held on
11/8/2009, 4th respondent, hailing from Ward No.6, objected to
the nomination of the petitioner on the ground that the petitioner
was disqualified under Rule 44(1)(i) of the Kerala Co-operative
Societies Rules to be a member, he being a Director of
Padmatheertham Kuries and Loans Pvt. Ltd., a company
incorporated under the provisions of the Companies Act, 1956,
which is engaged in the same business, as is being carried on by
the 3rd respondent Bank.
2. In the counter affidavit filed by the 1st respondent, it is
averred that the complaint received from the 4th respondent was
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disclosed to the petitioner and that he did not produce any
document contradicting the averments in the complaint. As
against this, according to the petitioner, he had produced before
the 1st respondent Exts.P6 to P8 to show that he had already
resigned from the Board of Directors of the aforesaid Company as
early as on 15/7/2009 and that his resignation was already
accepted by the Company. Be that as it may, from the files of the
1st respondent, produced by the learned Government Pleader, it is
seen that the Returning Officer rejected the nomination, with the
following order:
“Rejected under Rule 44(1)(i)”.
3. It is in this background this writ petition is filed with the
following prayers:
(i) issue a writ of certiorari, calling for the records
leading to the rejection of the nomination paper submitted
by the petitioner, evidenced by Ext.P4 receipt and pass
appropriate orders.
(ii) issue a writ of mandamus or any other writ,
declaring that the rejection of nomination of the petitioner,
by the 1st respondent, on the ground that the petitioner is
the director of a Chitty company is wrong and illegal
exercise of power.
(iii) issue a writ declaring that there is no disqualification
for the petitioner to contest in the election to the
managing committee of the 3rd respondent bank and the
rejection is bad in law.
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4. I heard Sri.C.S.Ajith Prakash, learned counsel
appearing for the petitioner, learned Government Pleader for the
1st respondent, Sri.George Poonthottam appearing for the 3rd
respondent and also Sri.G.Sreekumar appearing for the 4th
respondent.
5. Several factual contentions have been made by both
sides. While the petitioner asserts his eligibility to contest in the
election in view of his resignation from the company, which
according to him was accepted long prior to the submission of the
nomination and that he had produced documents in proof thereof
before the Returning Officer, the learned Government Pleader and
also the 4th respondent denies the above assertions. It is also to
be noted that the petitioner’s above assertions are supported by
the 3rd respondent in the counter affidavit filed.
6. Irrespective of the factual controversies raised in this
writ petition, in my view, the petitioner is entitled to succeed on
the short ground that in the rejection of his nomination, the
Returning Officer has not complied with the requirements of Rule
35A (e) (iv), which reads as under:
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(iv) 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.
7. A reading of this Rule shows that if the decision of the
Returning Officer is to accept the nomination, he shall make an
endorsement to that effect on the nomination paper. On the
other hand, if his decision is to reject the nomination, he shall
record in writing a brief statement of his reasons for such
rejection. Although in the affidavit filed, detailed reasons for
rejecting the petitioner’s nomination have been stated, as has
been held by the Apex Court in Mohinder Singh v. Chief
Election Commissioner (AIR 1978 SC 851), validity of an order
has to be decided on the reasons stated in the order itself and
reasons cannot be supplemented through the counter affidavit
filed. If that be so, the validity of the rejection has to be tested in
the light of the endorsement that is made by the Returning Officer
on the reverse side of the nomination form itself, which has been
extracted above. The question in such circumstances, is whether,
the endorsement made by the Retuning Officer satisfies the
requirements of the Rules.
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8. In my view, the Returning Officer has not given a brief
statement of his reasons for rejection of the nomination of the
petitioner, which is a mandatory requirement as per the Rule
extracted above. Learned Government Pleader contended that
since the Rule, on the basis of which nomination has been
rejected, that will satisfy the requirements of the Rule. In my
view, this contention is not acceptable. The Rule may be attracted
in several factual situations and what is required to be stated is
the factual situation in which the rule is attracted in a particular
case. Consequently, the rejection of the petitioner’s nomination is
illegal, and necessarily, the decision of the Returning Officer, has
to be quashed and I do so.
9. It is therefore declared that the rejection of the
nomination of the petitioner is illegal and therefore the petitioner
is entitled to contest in the election to the Board of Directors of
the 3rd respondent Society, which is now scheduled to be held on
23/8/2009. However, it is made clear that this judgment has been
rendered for the aforesaid reasons and if any person including the
4th respondent has a case that the petitioner is ineligible for any
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reason, it will be open to them to pursue the statutory remedies
that are available and such authority shall decide the matter
untrammelled by the findings herein.
Writ petition is allowed as above.
ANTONY DOMINIC, JUDGE
Rp