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Jijo Kurian vs Returning Officer on 19 August, 2009

Kerala High Court
Jijo Kurian vs Returning Officer on 19 August, 2009
       

  

  

 
 
  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.
                     ================
                 W.P.(C) NO. 23248 OF 2009 (A)
                 =====================

           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

WPC 23248/09
:2 :

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.

WPC 23248/09
:3 :

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:

WPC 23248/09
:4 :

(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.

WPC 23248/09
:5 :

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

WPC 23248/09
:6 :

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

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