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1994 DIGILAW 397 (KER)

Moosa v. Joint Registrar

1994-10-25

K.SREEDHARAN, SUJATA V.MANOHAR

body1994
Judgment :- Sreedharan, J. Writ petitioner in O.P. 13197 of 1994 is the appellant. He wanted to contest the election to the Board of Directors of the third respondent Co-operative Bunk. Nomination paper was submitted on 1-9-1994. As per the scheme of the election, date and time for scrutiny was fixed as 2-9-199411 A.M. At the scrutiny, the Returning Officer rejected the nomination on account of the petitioner being a defaulter. This action of the Returning Officer was questioned before the learned single judge on the ground that before the time of scrutiny, arrears were paid and so the disqualification, if any, was removed and the petitioner should have been treated as a candidate entitled to contest the election. According to the petitioner, the material point of time for verifying the qualifications is the time fixed for scrutiny and not the time for filing nomination. This contention was not accepted by the learned single judge relying on the' decision in Velunni v. Returning Officer (1990(2) KLT 816). Consequently, the Original Petition was dismissed. The correctness of that decision is under challenge. 2. Learned counsel representing the appellant contends that the learned single judge was not justified in dismissing the Original Petition relying on Velunni's case (1990(2) KLT 816) since a contrary view has been taken by another learned single judge in Kuriakose Baby v. Kadavoor Service Co-op. Bank (1994(2) KLT 656). In Kuriakose Baby's case, the learned single judge took the view that if a candidate clears the debt prior to the time for scrutiny of nomination, his nomination is not liable to be rejected by the Returning Officer. 3. Rule 35 of the Co-operative Societies Rules deals with the procedure regarding the conduct of election to the Committee of Co-operative Societies. Clause (3) of that Rule provides for the various steps to be taken by the Returning Officer. Sub-clauses (a) and (b) of Clause (3) inter alia, provide for preparation of the final voters' list and its publication. Sub-clause (c) deals with nomination of candidates for election. As per sub-clause (i), the nomination of the candidate should be made in the form prescribed by the Society. Sub clause (ii) of sub-clause (c) further states that every nomination paper shall be signed by two members whose names are included in the list of voters. Sub-clause (c) deals with nomination of candidates for election. As per sub-clause (i), the nomination of the candidate should be made in the form prescribed by the Society. Sub clause (ii) of sub-clause (c) further states that every nomination paper shall be signed by two members whose names are included in the list of voters. One of the members shall sign the form as proposer and the other as seconder for the nomination. That nomination paper shall contain a declaration signed by the candidate proposed for election to the effect that he is willing to stand for election. Sub-clause (iii) then provides that every nomination paper shall be presented in person or sent by registered post acknowledgement due by the candidate himself or his proposer or seconder to the Returning Officer so as to reach him before the date and hour specified for receipt of the same. Thereafter comes sub-clause (d) to Clause 3 of R.35. It deals with the conditions to be satisfied and the qualifications to be fulfilled by the candidates for being nominated. No member of the Co-operative Society shall be nominated if he is ineligible to vote, if he does not possess the necessary qualifications as specified in the bye-laws or is disqualified to be a member under the provisions of the Act and Rules. So a person can be nominated as contemplated by sub-clause (c) referred to above only if he is not having any of the disqualifications mentioned in sub-clause (d) of C1.3. To see what are the disqualifications that can be attached to a candidate, one has to refer to R.44 of the Co-operative Societies Rules. That Rule inter alia, provides that no member of a Society shall be eligible for being elected or appointed as member of the Co-operative Society under S.28 if he is in default to a Society or to any other Society in respect of any loan or loans taken by him or loan in which he has stood surety. So a person who is not so disqualified alone can be nominated by the proposer and the seconder. Nomination is to be made by the proposer and the seconder. Qualification of the candidate should be with reference to the time of nomination. 4. Sub-clause (e) of C1.3 of R.35 deals with the scrutiny of nomination papers. So a person who is not so disqualified alone can be nominated by the proposer and the seconder. Nomination is to be made by the proposer and the seconder. Qualification of the candidate should be with reference to the time of nomination. 4. Sub-clause (e) of C1.3 of R.35 deals with the scrutiny of nomination papers. It states that on the day following the date fixed for receipt of nomination papers, the Returning Officer shall take up the scrutiny of the nomination papers. This provision makes it clear that the Returning Officer is only to scrutinise the nomination paper. He is not nominating the candidates. If on that scrutiny, he finds that a member was not qualified at the time of the filing of the nomination, he has only to reject the same. It is true that the Returning Officer is not to reject the papers on hyper-technical grounds. The disqualification of the candidate can never be considered to be a hyper-technical ground. 5. To find out whether any person can be validly nominated, it is necessary to examine whether he is qualified to be nominated. That qualification must obviously be as on the date of the nomination and not with reference to a time subsequent to the filing of the nomination. This matter was considered by a Division Bench of the Madras High Court in the decision reported in Balasubramanyan v. Election Tribunal ( A.I.R 1954 Mad. 730). In that case, facts were as follows: Name of the petitioner therein was not entered in the electoral rolls at the time when he filed the nomination for contesting the election to the Parliament. But, by the time the nomination paper was taken up for scrutiny, his name was entered in the electoral rolls. Consequently it was contended that his nomination paper should not have been rejected by the Returning Officer. Dealing with this issue, the Bench consisting of Rajamannar, C.J. and Venkatrarama Aiyar, J. observed: "Obviously to find out if any person can be validly nominated it is necessary to find out if he is qualified to be nominated, qualified obviously on the date of the nomination and, not subsequently or at some time prior. The tense of the verb vis qualified' must needs refer to the time of the nomination. The tense of the verb vis qualified' must needs refer to the time of the nomination. The logical result of accepting the petitioner's contention would lead us to this position, namely, that aperson who is not qualified or is disqualified to be chosen on the date of the nomination can be validly nominated because of the possibility that he may become qualified or he may get rid of the disqualification subsequently before the date of the poll." We are in respectful agreement with the above statement of the law. If we accept the contention raised by learned counsel representing the appellant, a candidate may be disqualified under R.44 of the Co-operative Societies Rules to be nominated as a candidate for election to fill a seat in the Committee at the time of filing the nomination but he may get rid of that disqualification by the time the nomination paper is taken up for scrutiny by the Returning Officer. This is not the scheme of the Co-operative Societies Act and the Rules framed thereunder. If a candidate is disqualified as on the date of the nomination, he cannot get rid of that disqualification by any act that was undertaken between the time of filing the nomination and the time of scrutiny. According to us, the view taken by this Court in Velunni's case (1990(2) KLT 816) is correct. 6. In Kuraikose Baby v. Kadavoor Service Co-operative Bank (1994(2) KLT 656), the learned Single Judge has not referred to the provisions contained in R.35 of the Co-operative Societies Rules. Nor was the earlier decision in Velunni's case (1990(2) KLT 816) brought to his notice. Therefore, we are of the view that the law stated in Kuriakose Baby's case is not correct. We overrule the same. The Writ Appeal is devoid of any merit. It is accordingly dismissed.