Velunni v. Returning Officer — 1990 DIGILAW 438 (KER)

Judgment :- The Original Petition is to declare that the 3rd respondent is not eligible for being elected or appointed as a member of the Kannambra Co-operative Service Bank Ltd. No. F. 1221 and that the nomination paper submitted by him pursuant to Ext.P1 election notification was liable to be rejected by the first respondent and also for a further declaration that the 2nd petitioner is entitled to be elected unopposed as member of the Board of Directors of Kannambra Co-operative Service Bank Ltd. (hereinafter to be referred as 'the bank') from Kannambra ward. There are also prayers for other reliefs, which are of incidental nature. 2. Petitioners are members of the 2nd respondent Bank. The term of the Board of Directors of the Bank was to expire on 30-6-1990. Therefore, a resolution was passed to conduct the election to constitute a new Board of Directors. Ext.P1 election notification dated 17-5-1990 was issued fixing 17-6-1990 as the date of election to the new Board of Directors. Altogether nine Directors are to be elected out of which one seat is reserved for woman candidates and one reserved for candidates belonging to Scheduled Castes/ Scheduled Tribes. Two seats were reserved for members who have deposited with the bank not less than Rs.2, 000/- without any liability. The remaining five Directors are to be elected from five wards. Kannambra is one of the five wards. In this case I am concerned only with the nomination and election of the Director from Kannambra ward. 3. The election notification fixed 6-6-1990 as the date for filing the nominations at the Bank Head Office between 1 P.M. and 3 P.M. The first petitioner filed nomination as a candidate from Ayakkad Ward. The 2nd petitioner and the 3rd respondent submitted nominations as candidates from Kannambra ward. The nominations were to be scrutinised on 7-6-1990 from 11 AM. On wards at the Bank Head Office and the final list of candidates was to be published on the same day at 3 P.M. in the notice board of the Bank. On scrutiny of the nomination papers the petitioner's nomination was found to be in order and was accepted. The 3rd respondent who was also a candidate to be elected from Kannambra ward had filed his nomination showing that he was already a member of the Board of Directors of two other co-operative Societies, viz. On scrutiny of the nomination papers the petitioner's nomination was found to be in order and was accepted. The 3rd respondent who was also a candidate to be elected from Kannambra ward had filed his nomination showing that he was already a member of the Board of Directors of two other co-operative Societies, viz. the Land Development Bank, Alathur and the Manjappara-Kannambra Co-operative Milk Society. The 1st petitioner, therefore, submitted written objection to the 1st respondent Returning Officer requesting him to reject the nomination paper of the 3rd respondent. Ext.P2 is the written objection filed before the Returning Officer by the 1st petitioner. Another member, viz. one Sri.K.S. Radhakrishnan also filed objection, Ext.P3, against the nomination of the 3rd respondent raising the same grounds. The objection raised by the 1st petitioner as well as Sri.K.S. Radhakrishnan was that the 3rd respondent being a member of the Board of Directors of two other Cooperative Societies, is ineligible to compete in the election to the Board of Directors of the 2nd respondent Bank under R.44(1)(a) of the Kerala Co-operative Societies Rules (hereinafter to be referred to as 'the rules' ) read with S.28(2) (b) of the Co-operative Societies Act (hereinafter to be referred to as 'the Act') and R.35(3)(d)(iii) of the Rules. The cumulative effect of the said provisions is that if a person is the member of the Board of Directors of two Co-operative Societies, he should be treated as unqualified for being elected or appointed as a member of the Board of Directors of another Co-operative Society. It is submitted on behalf of the petitioners that when the defect in the nomination paper of the 3rd respondent was pointed out, the 1st respondent Returning Officer observed that he was rejecting the nomination of the 3rd respondent. Therefore, as far as Kannambra ward is concerned, only the 2nd petitioner remained in the contest and he ought to have been declared elected being the only contesting candidate from Kannambra ward. But when the final list of candidates was published, it contained the name of the 3rd respondent also. In the above circumstances, the petitioners filed this writ petition seeking a declaration that the 2nd petitioner is entitled to be declared as elected unopposed. 4. When the petition came up for admission, I ordered urgent notice to the respondents and directed the Returning Officer to file an affidavit. In the above circumstances, the petitioners filed this writ petition seeking a declaration that the 2nd petitioner is entitled to be declared as elected unopposed. 4. When the petition came up for admission, I ordered urgent notice to the respondents and directed the Returning Officer to file an affidavit. In the affidavit dated 15-6-1990 filed by the 1st respondent Returning Officer in compliance with my order, it is admitted that in the nomination paper against column 14 the 3rd respondent had written that he is member of the Board of Directors of the Land Development Bank, Alathur and Kannambra - Manjapra Ksheera Vyavasaya Sahakarana Sanghom. But along with the nomination paper he had also submitted declaration stating that he is not a member of the Committee of another society of the same and that he is not a member of the Committee of two or more societies of different types. The Returning Officer further averred that when he asked the 3rd respondent, he stated that he had resigned from the Board of Directors of Kannambra-Manjappra Ksheera Vyavasaya Sahakarana Sangham on 6-6-1990, but he did not produce any evidence for his resignation. Therefore, the Returning Officer states, he had given time to the 3rd respondent to produce evidence uptors P.M. on 7-6-1990. It is further stated that the 3rd respondent produced attested copy of the resolution accepting the resignation at 4.56 P.M. on 7-6-1990 and it is on that basis the nomination paper was accepted. It is seen that the certified copy of the resolution is dated 7-6-1990 showing that the resignation was accepted by the Managing Committee. 5. The question is whether the acceptance of the nomination paper of the 3rd respondent is valid and justified. The nomination paper had to be filed between 1 P.M. and 3 P.M. on 6-6-1990, which was done by the petitioners as well as the 3rd respondent. R.35 of the Rules lays down the procedure regarding the conduct of the election to the Committee of Co-operative Societies. It also provides how the nomination paper should be presented. The nomination paper had to be filed between 1 P.M. and 3 P.M. on 6-6-1990, which was done by the petitioners as well as the 3rd respondent. R.35 of the Rules lays down the procedure regarding the conduct of the election to the Committee of Co-operative Societies. It also provides how the nomination paper should be presented. R.35(d) reads as follows: "(d) No member shall be nominated as a candidate for election to fill a seat on the committee if he (i) Is ineligible to vote; (ii) Does not possess the necessary qualifications, if any, specified in the bye laws of the society for election as a member of the committee or; (iii) is disqualified to be a member under the provisions of the Act and Rules or a member of the committee under these Rules." The above sub-rule clearly provides that no member shall be nominated as a candidate for election if he is disqualified to be a member under the provisions of the Act and the Rules, or a member of the committee under the Rules. R.44(1)(a) clearly provides that no member of a society shall be eligible for being elected or appointed as a member of the Board of Directors of the society under S.28 of the Act if he is disqualified under S.28. S.28(2)(b) provides that notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being appointed or for being a member of a committee if he is a member of the committees of two or more Societies of a different type or types. It is admitted that the proviso to S.28(2)(b) will not apply in this case. 6. In view of the above provisions, if the 3rd respondent to a member of the committees of two or more societies of a different type or types, by virtue of the prohibition contained is R.35(3)(d)(iii) he will be disqualified to be nominated as a candidate for election. Therefore, going by the statutory provisions, the irresistible conclusion that can be arrived at is that the nomination filed by the 3rd respondent is invalid - 7. According to Ext.P1 election notification the scrutiny of the nomination papers had to be made on 7-6-1990 from 11 AM. On wards. Therefore, going by the statutory provisions, the irresistible conclusion that can be arrived at is that the nomination filed by the 3rd respondent is invalid - 7. According to Ext.P1 election notification the scrutiny of the nomination papers had to be made on 7-6-1990 from 11 AM. On wards. The final list was to be published on the same day at 5 P.M. Even according to the statement filed by the first respondent Returning Officer, when the scrutiny was made in the nomination paper of the 3rd respondent against column No. 14 he had written that he is a member of the Board of Directors of the Land Development Bank, Alathur and Kannambra-Manjappra Ksheera Vyavasaya Sahakarana Sangham. That means, it is admitted that he was already a member of the committees of two co-operative societies of different types. It is also stated that the 3rd respondent produced certified copy of resolution No.l dated 7-6-1990 showing the acceptance of resignation. Admittedly, the resignation was accepted on 7-6-1990 and therefore, at the time when he filed the nomination paper he was a member of the committees of two other co-operative societies. His nomination was therefore, defective. Under Rule 38(4) of the Rules, a resignation shall have effect only from the date of its acceptance by the Committee. Sub rule (4) Of R.38 provides that the President of the Committee, on receipt of the resignation, shall within seven days from the date of receipt thereof, place it before the committee of the society for consideration if the member is an elected person or sent it to the authority that nominated the member if he is a nominee. It is thereafter the committee accepts the resignation. Therefore, the resignation of the 3rd respondent shall have effect only on its acceptance and it was done, even according to the 1st and 3rd respondents, on 7-6-1990. Certified copy of the resolution was produced before the 1st respondent only at 4.56 P.M. on 7-6-1990, ie. Four minutes before the time fixed for publishing the final list of candidates. This will not make the nomination paper submitted on 6-6-1990 valid as clause 2 of the note contained in Ext.P1 election notification itself makes it clear that along with the nomination paper the candidate has to submit an affidavit to the effect that he has no disqualification under R. 44(1) of the Rules. This will not make the nomination paper submitted on 6-6-1990 valid as clause 2 of the note contained in Ext.P1 election notification itself makes it clear that along with the nomination paper the candidate has to submit an affidavit to the effect that he has no disqualification under R. 44(1) of the Rules. This also gives an indication that the question whether the candidate is a member of the committees of two other Co-operative Societies will have to be judged as on the date of submitting the nomination and not with reference to a later date. R.35(3)(e)(ii) of the Rules also gives an indication that what the Returning Officer has to examine is the nomination paper and the validity of the same has to be judged with respect to the entries therein. 8. Even though the statutory provisions are clear enough, petitioner referred me to the decisions reported in Viswanatha Reddy v. Konappa Rudrappa Nadgouda (AIR 1969 SC 604) and Birad Mai Singvi v. AnandPurohit (AIR 1988 SC 1796) in support of the proposition that the date of nomination is the point of time with reference to which the validity of nomination paper had to be judged. I do not find it necessary to consider these decisions in detail, because on the interpretation of the statutory provisions itself the petitioners' case that the nomination paper of the 3rd respondent is invalid has to be accepted. Therefore, in the light of the above statutory provisions and the judicial elucidations, I hold that the nomination paper of the 3rd respondent is invalid and the same is liable to be rejected. 9. If the nomination paper of the 3rd respondent is to be rejected, the only other person in the field is the 2nd petitioner as a candidate from Kannambra ward. R.35(3)(h) provides as follows: "(h) If for any area or constituency for which election is to be held the number of candidates whose nomination papers have been declared valid does not exceed the number of candidates to be elected for that area or constituency, the Returning Officer shall on the day fixed for the election, announce the names of all such candidates whose nominations are valid and declare them to have been duly elected to the committee. If the number of candidates whose nominations are valid exceeds the number to be elected for any area or constituency, the Returning Officer shall arrange for conducting a poll on the date fixed for the purpose. The Returning Officer may appoint one or more polling officers as may be necessary for conducting the poll." The only valid nomination paper filed for election as a candidate from Kannambra ward is that of the 2nd petitioner. In terms of R.35(3)(h) he has to be declared elected. To that effect is the decisions reported in Konappa v. Viswanath (AIR 1969 SC 447) and Viswanatha v. Konappa (AIR 1969 SC 604). 10. Counsel for the respondents submitted that the petitioner has alternative remedy by way of an election petition under S.69 of the Act and therefore, this Court has no jurisdiction to interfere at this stage and grant the relief. We referred to the decision in Ram and Shyam Company v. State of Haryana ((1985) 3 SCC 267), L Hirday Narain v. Income-tax Officer (AIR 1971 SC 33) and Vijayan v. Board of Directors, ST. Co-op. Bank (1983 KLT 705), in support of the above proposition. It is well settled that the existence of alternative remedy is not a bar to exercise the jurisdiction under Art.226 of the Constitution. It is only a rule of convenience and in appropriate cases this Court will interfere under Art.226 even if alternative remedy is available. In this case it is clear that the nomination paper filed by the 3rd respondent by his own showing is invalid and is liable to be rejected. If that were so, the only, other candidate who filed a valid nomination paper being the 2nd petitioner for being elected as a member of the Board of Directors. From Kannambra Ward, he has a right to be declared elected. On C.M.P. 9074 of 1990 I passed an order prima facie coming to the conclusion that the Returning Officer was wrong in accepting the nomination of the 3rd respondent as valid, staying the election of the member of the Board of Directors of the 2nd respondent Bank from Kannambra ward pending final disposal of the Original Petition. On C.M.P. 9074 of 1990 I passed an order prima facie coming to the conclusion that the Returning Officer was wrong in accepting the nomination of the 3rd respondent as valid, staying the election of the member of the Board of Directors of the 2nd respondent Bank from Kannambra ward pending final disposal of the Original Petition. Now that after hearing the parties I have come to the conclusion that the nomination paper submitted by the 3rd respondent is liable to be rejected, I declare that the 2nd petitioner is entitled to be elected unopposed as a member of the Board of Directors of the 2nd respondent Bank from Kannambra ward. The Original Petition is allowed as above. There will be no order as to costs.