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1993 DIGILAW 393 (KER)

Pankajaksha Panicker v. Venugopalan Nair

1993-08-17

K.SREEDHARAN, M.JAGANNADHA RAO

body1993
Judgment :- Jagannadha Rao, C.J. This appeal is filed by respondents 2 to 10 in the writ petition, O.P. 6406 of 1993-K against the judgment dated 21-7-1993 of the learned single judge allowing the writ petition. The respondents 1 to 9 in this appeal are the writ petitioners. Respondent 10 is the first respondent in the writ petition. Respondents 11 to 13 are respondents 11 to 13 in the writ petition. 2. The facts of the case are as follows: The election to the Managing Committee of a Co-operative Society (The Kappikadu Ksheerolpadaka Sahakarana Sanghom (D) APCOS, Poovachal P.O., Trivandrum) was to be held on 22-5-1993. The Managing Committee consists of 9 members. On 21-4-1993, as per Ext. P1, election notice was issued by the Returning Officer showing that nine members are to be elected in the election to be held on 22-5-1993. The dates fixed for filing the nomination papers were from 1-5-1993 to 6-5-1993. The scrutiny was to take place on 7-5-1993. The nine respondents (writ petitioners) filed their nominations on time. 3. It is the case of the respondents (writ petitioners) that the Returning Officer initially accepted their nine nomination papers, but that after they left the place, he corrected the endorsement and rejected their nominations on the ground that the column relating to the date of election was not fully filled by the candidates, but was left blank. Then one of the seconders represented to the Returning Officer, but the representation was rejected. In the connected case, OP 6407 of 1993 which was also heard alongwith this OP 6406 of 1993, the nominations were rejected on the ground that the serial number in the voters' list of the first petitioner was wrongly shown and the serial number of the seconder of the second petitioner was also wrongly shown. Later, the Returning Officer gave his reasons for rejection, in writing as per Ext. P3 dated 7-5-1993. The appellants were declared elected uncontested. 4. The writ petition, OP 6406 of 1993 was filed on 13-5-1993. In the CMP. the learned single judge granted suspension of the assumption of charge by the appellants. 5. Finally, this writ petition and the connected writ petition were heard and allowed by judgment dated 21-7-1993, holding that the rejection of the nominations was patently illegal. 4. The writ petition, OP 6406 of 1993 was filed on 13-5-1993. In the CMP. the learned single judge granted suspension of the assumption of charge by the appellants. 5. Finally, this writ petition and the connected writ petition were heard and allowed by judgment dated 21-7-1993, holding that the rejection of the nominations was patently illegal. On the question whether when the nominations are rejected on patently illegal grounds, the affected parties could approach this Court under Article 226 of the Constitution of India, the learned single judge relied upon the recent rulings of this court in Joy v. Joint Registrar (1989(1) KLT 854) and in Ravi v. Kottayam Co-operative Urban Bank Ltd (1993(1) KLT 644) and held that they could. The learned single judge then went further and held that the consequential proceedings of the Returning Officer declaring the appellants as elected to the Managing Committee, were also liable to be set aside. The result was that the nominations of the writ petitioners were to be treated as valid and a fresh election was to be held. It is against this judgment that the appellants have preferred this writ appeal. 6. In this appeal, two contentions are raised. One is that the rejection of the nominations of the writ petitioners was not illegal and that the learned single judge ought to have dismissed the writ petition on the ground of existence of an effective alternative remedy under S.69 of the co-operative societies act by way of an election petition. The other contention is that even if the High Court could go into the validity of the rejection of the nominations, it cannot, under Article 226, set aside the declaration of the result of the election. 7. So far as the first contention for the appellants is concerned, we are clear, for reasons given in Ravi v. Kottayam Co-operative Urban Bank Ltd (1993 (1) KLT 644) and other rulings of this Court that where the rejection of the nomination papers is patently illegal, this Court could interfere under Article 226 of the Constitution of India and need not always relegate the parties to an election petition. We reiterate the said view once again particularly in the light of the patent illegalities in the rejection of nominations which are wholly unsupportable. We reiterate the said view once again particularly in the light of the patent illegalities in the rejection of nominations which are wholly unsupportable. Further on the facts of the case, there is no question of adducing any documentary or oral evidence and there is no need to adduce elaborate oral or documentary evidence. 8. In this appeal, we are satisfied that the rejection of the nominations filed by the respondents-writ petitioners on the ground that the column relating to date of election was left blank, is wholly unsupportable. The date was known to everybody and was not in dispute and was, in fact, stated in the supporting affidavit etc. The learned single judge was, therefore, right in following Ravi v. Kottayam Co-operative Urban BankL td (1993 (1) KLT 644) and in quashing Ext. P3 proceedings of the Returning Officer rejecting the nominations of the writ petitioners. 9. It was, however, argued for the appellants that in Joy's case (supra) and Ravi's case (supra), this Court did not advert to the proviso to Rule 35(3)(e)(ii) of the Rules and that that proviso specifies the limited contingencies in which the Returning Officer could not reject defective nominations and that, therefore, in other contingencies, the said Officer must be deemed to have validly rejected the nomination. We are unable to agree. In our view, the contingencies mentioned in the said proviso are not exhaustive. Apart from them, if the rejection of the nominations was patently illegal, the High Court could interfere under Article 226 of the Constitution. 10. The next question is as to whether the learned single judge was right in holding further that the proceedings of the Returning Officer declaring the nine appellants as elected to the nine positions in the Managing Committee, were also invalid and directing a fresh election. 11. In our considered view, the learned single judge was not wrong in giving consequential declarations and directions. The rejection of the nominations of the writ petitioners and the simultaneous consequential declaration of the nine appellants as elected to the nine position on the Managing Committee, were integrally connected and the latter was purely dependent on the former. 12. 11. In our considered view, the learned single judge was not wrong in giving consequential declarations and directions. The rejection of the nominations of the writ petitioners and the simultaneous consequential declaration of the nine appellants as elected to the nine position on the Managing Committee, were integrally connected and the latter was purely dependent on the former. 12. While it is true that, as a general principle, this Court, while exercising jurisdiction under Article 226 of the Constitution of India, does not normally set aside any election, there may indeed be rare cases where even if the resultant election is not directly set aside, the quashing of some other anterior proceeding of the Returning Officer might result, as a matter of operation of the law, in the setting aside of a resultant election. This happens not because the High Court is treating the writ petition as an election petition but because the exercise of its powers under Article 226 to set aside arbitrary and patent illegal orders of the Returning Officers in regard to rejection of nomination papers might incidentally result in the consequential election falling to the ground or becoming nugatory. Indeed, the quashing of the illegal rejection of the nominations will naturally revive the nominations and then there will be more nominations than 9 and the earlier automatic acceptance of the 9 nominations of the appellants would automatically fall to the ground. 13. The principle relating to 'dependant orders' is well-settled in law. If a particular order is set aside by the Court, it goes without saying that the consequential or dependant orders, if any, passed on the basis of the orders so set aside, will also normally fall to the ground as a matter of course and need not be specifically set aside. In that view of the matter, the consequential declaration of the appellants, as elected to the Managing Committee, automatically falls through without the need for being set aside separately. Venkatachalaiah, J. (as he then was) in G. Ramegowda v. Spl. In that view of the matter, the consequential declaration of the appellants, as elected to the Managing Committee, automatically falls through without the need for being set aside separately. Venkatachalaiah, J. (as he then was) in G. Ramegowda v. Spl. LA Officer, Bangalore (AIR 1988 SC 897 at 899, para 5) observed: "This is an instance of what arc called dependant orders' and if the order excusing the delay is itself set aside in these appeals, the further excuse made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory", (emphasis supplied) The same principle is, more or less, laid down in C.N. Ambrose v. Meenakshi (AIR 1953 TC 109) and in S. VenkataramaAyyar v. UmamataiAmmal (AIR 1951 Mad. 883(1)), while dealing with remand orders. Any decrees passed by the trial court pursuant to the order of remand would stand automatically vacated by operation of law when the remand order is set aside by the High Court. Yet another instance of 'dependant orders' is where, upon the setting aside of a preliminary decree, there results an automatic setting aside, by operation of law, of any final decree passed on the basis of the preliminary decree (see: Lakshmi v. Marudevi - AIR 1915 Mad. 197 and Rangiah v. Peddireddi - AIR 1957 AP 330). 14. The same principle is applied in cases of orders or provisions which are not sever able from those set aside or held to be ultravires. The order of rejection of nominations and the order declaring the result of the elections are unseverable and are so inter-twined that if the first one goes so does the second one. 15. Therefore, we hold that the order declaring the appellants as elected will automatically fall to the ground and is 'rendered nugatory', the moment this Court has quashed the orders of the Returning Officer rejecting the nominations of the respondents-writ petitioners as being patently illegal. 16. Further, if this Courts grants a declaration that the rejection of the nomination is patently illegal and quashes the same, it will be an empty formality to drive the parties to an election petition inasmuch as there is nothing to be tried, the judgment of this Court operating as res judicata, and the arbitrator would have no choice whatsoever than to allow the election petition. For the aforesaid reasons, we affirm the judgment of the learned single judge and dismiss this appeal.