Anto v. Jackson — 1993 DIGILAW 99 (KER)

Judgment :- The petitioners are members of the Irinjalakuda Town Co-operative Bank Ltd., the respondent No. 5 herein, which is a co-operative society registered under the Kerala Co-operative Societies Act. The respondent Nos.1 and 2 are also members of the society. The nomination papers of the respondents 1 and 2 for the election to the Managing Committee of the society scheduled to be held on 21-2-1993 were accepted by the Returning Officer, the respondent No. 3 herein, on 28-1-1993. In (his petition under Article 226 of the Constitution of India the petitioners seek two reliefs: a) A writ in the nature of mandamus commanding the Returning Officer to reject the nomination papers of the respondent Nos:1 and 2 and b) a writ in the nature of mandamus commanding the Returning Officer to take "a decision" on the petitioners' objections (Ext, P1 to this petition) to the nomination of respondent Nos.1 and 2, The facts out of which the petition arises are set out in the next paragraph. 2. The elections to the managing committee of the society is scheduled to be held on 21-2-1993. The final list of members qualified to vote was published on 14-1-1993. The nomination papers of respondent Nos. 1 and 2 and other candidates were-received between 9.00 a.m. and 2.00 p.m. on 27-1-1993, 28.1.1993 was the date fixed for the scrutiny of the nomination papers. The petitioners claim to have filed objection (Ext. P1 to the petition) on 28-1-93. There is a controversy as to whether the written objections (Ext. P1) were filed by the petitioners on 28-1--1993. The respondent Nos:1 and 2 and the Returning Officer contend that the petitioners filed written objection (Ext. P1) only on 29-1-1993, after the nomination papers of the respondent Nos: land 2 were accepted. It is not necessary to decide this controversial question because it is admitted by the Returning Officer in his affidavit that at the time of the scrutiny the petitioners did object to the nomination of the respondent Nos:1 and 2. The ground of objection was that the respondent Nos:1 and 2 are members of the committee of St. Thomas Cathedral Kurics which fact is admitted, When the objection was raised the respondent Nos:1 and 2 produced copies of letters dated 23-1-1993 (ExIs. R3 (a) and R3 (b) to 'he counter affidavit of the returning officer) written by the Vicar of At. Thomas Cathedral. Thomas Cathedral Kurics which fact is admitted, When the objection was raised the respondent Nos:1 and 2 produced copies of letters dated 23-1-1993 (ExIs. R3 (a) and R3 (b) to 'he counter affidavit of the returning officer) written by the Vicar of At. Thomas Cathedral. These letters certify, that "the resignation letter of Sri...from the Church Kuri Committee is accepted here". In view of these letters the Returning Officer concluded that the disqualification of being engaged in the same business as the business of the society, namely conduct of chit funds, had been removed. Therefore he accepted the nomination papers. 3. If the respondent Nos:l and 2 had not resigned from the membership of the committee of St. Thomas Cathedral Kuries they are not eligible for being elected or appointed as members of the committee of the society. Clause (i) of sub rule (1) of Rule 44 of the Kerala Co-operative Societies Rules Says down that no member of the society shall be eligible for being elected, or appointed as a member of the committee of the society if he "is carrying the same business as is being carried on by the society". It is undisputed that the respondents 1 and 2 must be held to fall within the clause which disqualifies them, unless they resigned from the committee of St. Thomas Cathedral Kuries. 4. The first point urged by learned counsel for the petitioner is this. The Returning Officer who performs a quasi judicial function has a duty to (a) examined nomination papers (b) decide objection which may be made by any person in respect of such nomination and (c) after such summary inquiry as he thinks necessary accept or reject the nomination. The submission of counsel for the petitioners is that the Returning Officer has not "considered" the objections raised by the petitioners and has not "decided" the petitioners' objections. 5. The undisputed facts about the procedure followed, by the returning officer, leading up to the acceptance of the nomination papers are these: (i) The returning officer received and examined the nomination papers of the respondent Nos:1 and 2. (ii) The returning officer received the oral objection raised by the petitioners to the nominations of respondents 1 and 2. (iii) The returning officer considered the letters (Exts. R3 (a) and R3 (b)) produced by the respondents 1 and 2. (ii) The returning officer received the oral objection raised by the petitioners to the nominations of respondents 1 and 2. (iii) The returning officer considered the letters (Exts. R3 (a) and R3 (b)) produced by the respondents 1 and 2. (iv) The returning Officer orally told the petitioners that the objections were not sustainable. (v) He accepted the nomination paper of the respondent Nos:1 and 2. On these undisputed facts which are clear from the affidavits of the respondent Nos: and 2, the returning officer and the reply affidavit of the petitioner no. ] himself, the question is whether the Returning officer 'decided" the objection after making "summary incuiry" as required by sub-clause (ii) of clause (e) of sub rule (3) of Rule 35 of the Rubs. No doubt as held in Virindar Kumar v. State of Punjab (AIR 1956 3C 153) the Returning Officer functions in a judicial manner but "he is not to act judicially in discharging it". The inquiry contemplated by sub-clause (ii) of clause (e) of sub-rule (3) of R.35 is a summary inquiry. Sub clause (i) of Clause (e) of sub rule (3) of R.35 requires that the nomination papers are scrutinized "on the day following the date fixed for the receipt of nomination papers" thereby leaving a single day for the returning officer to perform his guar. judicial functions. In the very nature of the proceedings, which give to the Returning Officer only one day to scrutinize the nomination papers, the Returning Officer is not expected to embark upon an elaborate trial based on the objections raised to the nomination of candidates. The word x inquire' means make search or seek information. This involves asking questions and seeking answers. By its very nature such inquiry by the Returning Officer consists of understanding the objection raised, examining whether the objection to the qualification of the respondent Nos:1 and 2 is credible, seeking information from the respondents 1 and 2 in regard to the alleged disqualification and finally deciding whether the respondents 1 and 2 are eligible to be elected as members of the committee. In a summary inquiry of this kind it is not necessary to record elaborate reasons. If the Returning Officer is expected to record elaborate reasons in support of his decision, such inquiry would no longer be a summary inquiry. In a summary inquiry of this kind it is not necessary to record elaborate reasons. If the Returning Officer is expected to record elaborate reasons in support of his decision, such inquiry would no longer be a summary inquiry. In my opinion, the statement of the Returning Officer that he scrutinized the nomination papers, that the petitioners orally objected to the nomination of respondents 1 and 2 on the ground that they were disqualified, that he took into account the letters recording the receipt of the letters of resignation by respondent Nos:1 and 2 and finally concluded that the nomination papers of the respondent Nos:1 and 2 should be accepted, constitute inquiry contemplated by sub-clause (ii) of Clause (e) of sub rule (3) of Rule 35 of the rules. In my opinion the Returning Officer performed his quasi-judicial function of inquiring into the objections and arriving at a conclusion thereon satisfactorily and entirely in accordance with law. 6. The next argument of counsel for the petitioners is that the Returning Officer has not "decided" upon their objections recorded in Ext. P1 to the petition. What is written in Ext. P1 is what exactly was stated orally to the Returning Officer at the time of scrutiny of nomination papers on 28-1-1993. In other words, the very objections, which find place in Ext. P1, were communicated to the Returning Officer. It is those objections conveyed orally that were in fact considered by the Returning Officer. As already stated, the Returning Officer went through the process of summary inquiry and finally decided to accept the nominations of respondent Nos.1 and 2. The Returning Officer in the process of scrutiny of nominal jn papers, made the summary inquiry, into the allegation of disqualification. On considering the effect of the letters purported to prove the resignation of respondents 1 and 2 from the St. Thomas Cathedral Kuries, he decided to accept the nomination papers. The word s decision' means settlement of a question, forming a conclusion or making up one's mind. Did the Returning Officer make up his mind as to what should be done about the objection to the nomination papers? The answer is admittedly in the affirmative. I have said admittedly because these facts are admitted by parties. What is disputed is 4heir effect. Did the Returning Officer make up his mind as to what should be done about the objection to the nomination papers? The answer is admittedly in the affirmative. I have said admittedly because these facts are admitted by parties. What is disputed is 4heir effect. It is not the case of the petitioners that the Returning Officer did not accept the nomination papers of respondents 1 and 2. If the Returning Officer endorsed his acceptance of the nomination papers, what he endorsed was his decision. The reason is that the acceptance expressed formally, the judgment of the Returning Officer that the objection raised by the petitioners was unfounded and that therefore nomination papers had to be accepted. The fact of objections was present to the mind of the returning officer. So was the effect of the purported resignations. Having regard to the whole process through which the Returning officer'; mind went through, I am of the opinion that the Returning Officer did decide the petitioners' objections to the validity of the nomination papers filed by the respondent Nos:1 and 2. 7. Learned counsel for the petitioners drew my attention to the judgment of the Supreme Court in S.N. Mukherjee v. Union of India ((1990) 4 SCC 594). It was held that an administrative authority exercising quasi-judicial functions must record the reasons for its decision. The judgment cited by learned counsel for the petitioners arose out of the order of dismissal of an officer of the Army made by the General Court Martial and confirmed by the Chief of the Army Staff. In that case there were elaborate charges of misconduct in respect of which evidence was led. The cases of that kind cannot be equated with the case of scrutiny of nomination papers for election to the committees of co-operative societies. Besides, in paragraph 40 of the same judgment the Supreme Court observed: "For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, and administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decisions". (Emphasis supplied) The question is whether the requirement of recording reasons has been dispensed with, expressly or irapliedly by Rule 35 of the Kerala Co-operative Societies Rules. The scheme of the provisions in regard to the filing and acceptance or rejection of nomination papers is this. (Emphasis supplied) The question is whether the requirement of recording reasons has been dispensed with, expressly or irapliedly by Rule 35 of the Kerala Co-operative Societies Rules. The scheme of the provisions in regard to the filing and acceptance or rejection of nomination papers is this. Under sub-clause (i) of clause (e) of sub rule (3) of Rule 35 the Returning Officer "shall" take up the scrutiny of the nomination papers "on the day following the date fixed for the receipt of nomination papers". Thus the Returning officer has to consider the validity of nomination papers and take a decision on the objections on a single day. This statutory limitation of time excludes the need for an elaborate inquiry. The scrutiny is made in the presence of the candidate or his proposer or seconder who are permitted to remain present at the time of the scrutiny. Then follows the examination of nomination papers and consideration of objections, which is followed by a decision to accept or reject the nomination papers. The Returning Officer is required to give to the contesting candidates or their proposers or seconders all reasonable facilities to examine all the nomination papers and satisfy themselves that the inclusion of the name of the contesting candidates is valid. This process is expected to be completed within one day because the scrutiny has to be made "on the day" following the date fixed for receipt of nomination papers. This excludes the extension of the scrutiny to the following or any other day. What the Returning Officer is expected to do after he decides to accept or reject nomination papers is very significant for the purpose of considering whether the Returning Officer is bound to record his reasons. Sub-clause (iv) of clause (e) of sub-rule (3) of R.35 lays down what the Returning Officer is expected to do. The Returning Officer "shall endorse on each nomination paper his decision accepting or rejecting the same as the case may be". Then the next clause goes on to lay down that "if the nomination paper is rejected, he shall record in writing a brief statement of his reasons for such rejection". The primary obligation of the Returning Officer is to endorse his decision accepting or rejecting the nomination paper. Then the next clause goes on to lay down that "if the nomination paper is rejected, he shall record in writing a brief statement of his reasons for such rejection". The primary obligation of the Returning Officer is to endorse his decision accepting or rejecting the nomination paper. But where he decides to reject a nomination paper he shall "record in writing a brief statement of his reasons for such rejection.' The reasons have to be recorded in the case of rejection of nomination papers. Where the legislature intended that reasons shall be recorded it has directed the Returning Officer to record such reasons. Sub-clause (iv) of clause (e) of sub-rule (3) of R.35 clearly means that the Returning Officer shall record a brief statement of his reasons only in those cases where he decides to reject the nomination papers. By necessary implication this means that the Returning Officer need not record his reasons where he decides to accept the nomination papers. In my opinion therefore, there is no obligation on the Returning Officer to record reasons for his decision to accept nomination papers. In tins case the Returning officer accepted the nomination papers of respondent Nos:1 and 2. Therefore he was very right in not recording reasons for She acceptance of the nomination papers of respondent Nos:1 and 2. Sub-clause (iv) of clause (e) of sub-rule (3) of Rule 35 by necessary implication lays down that the requirement of recording reasons by the Returning Officer has been dispensed with in those cases where nomination papers are accepted. Therefore the Returning Officer's action in not recording reasons for accepting the nomination papers of the respondent Nos:1 and. 2, after overruling the petitioners' objection, is within the rule laid down in paragraph 40 of the judgment of the Supreme Court in S.N. Mukherjee v. Union of India ((1990) 4 SCC 594). 8. The petitioners urged that the copies showing that the letters of resignation were received or accepted in the office of the Vicar do not reveal that the resignation was accepted. According to them, therefore the resignations have not taken effect and the respondents 1 and 2 have not ceased to be members of the committee of St. Thomas Cathedral Kuries. The petitioners urged that the copies showing that the letters of resignation were received or accepted in the office of the Vicar do not reveal that the resignation was accepted. According to them, therefore the resignations have not taken effect and the respondents 1 and 2 have not ceased to be members of the committee of St. Thomas Cathedral Kuries. In the first place this argument raises a disputed question of fact whether the respondent Nos:1 and 2 have ceased to hold office will depend upon factors like acceptance of the resignation and whether respondent Nos:1 and 2 unilaterally ceased to be associated with the committee of St. Thomas Cathedral Kuries. Resignation is the spontaneous relinquishment of one's right. The relinquishment of the office by respondents 1 and 2 could take effect unilaterally or bilaterally. It would depend upon the nature of the office they hold and the conditions governing it. (Union of India v. Gopal Chandra Misra & Others (AIR 1978 SC 694). But the Returning Officer, who is not expected to record evidence in regard to the facts like resignations but has to decide the question of disqualification in a summary manner right in concluding that in view of the unilateral relinquishment of office by the respondents 1 and 2 before filing -the nomination papers, the disqualification had been removes. In a summary inquiry of the kind that the Returning Officer is expected to hold, he was fully justified in accepting the two letters produced by respondents 1 and 2 at their face value and come to the conclusion that they were not, on the date of filing the nomination papers, disqualified from or ineligible to contest the elections. 9. In my opinion, there is no merit in this petition. The petition is therefore dismissed.