IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 31346 of 2011(P) ------------------------------------ PETITIONER(S): ---------------------- C.M.DAMODARAN,S/O.MADHAVAN.C.P, CHELLARI HOUSE,CHUVANNAMANNU.P.O, THRISSUR DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): ------------------------ 1. THE RETURNING OFFICER,THRISSUR DISTRICT CO-OPERATIVE HOSPITAL LTD.NO.R 306,THRISSUR (THE ASSISTANT REGISTRAR(GENERAL)CHAVAKKAD), PIN-680001. 2. THE THRISSUR DISTRICT CO-OPERATIVE HOSPITAL LTD.NO.R 306,THRISSUR,THRISSUR DISTRICT, PIN-686001. 3. T.K.PORINCHU,S/O.KOCHUVAREEDU, THEKKEKKARATHAZHEKKADAN HOUSE,AMMADAM.P.O, THRISSUR DISTRICT-680563. 4. JANCY.K.D,HEAD NURSE,THRISSUR DISTRICT CO-OPERATIVE HOSPITAL,THRISSUR-680001. R1 BY SPL. GOVT. PLEADER SRI.D.SOMASUNDARAM R2 BY ADV. SRI.P.N.MOHANAN R3 BY ADV. SRI.GEORGE POONTHOTTAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss APPENDIX PETITIONER(S) EXHIBITS EXT-P1:- COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY DATED 1-11-2011. EXT-P2:- COPY OF THE OBJECTION RAISED BY THE PETITIONER TO THE CANDIDATURE OF THE 3RD RESPONDENT. EXT-P3:- COPY OF THE COMPLAINT FILED AGAINST THE 3RD RESPONDENT BEFORE THE ENQUIRY COMMISSION SPECIAL JUDGE(VIGILANCE) CO-OP;THRISSUR NUMBERED AS C.M.P.2700 OF 2008. EXT-P4:- COPY OF THE REPORT SUBMITTED PURSUANT TO THE ENQUIRY MADE ON EXT.P3 ALONG WITH THE STATEMENT OF THE ADMINISTRATOR. EXT-P5:- COPY OF THE FIR,IN CRIME NO.4/2009 OF VACB,THRISSUR. EXT.P6:- TRUE COPY OF THE COMPLAINT DATED 9-6-2011 PENDING BEFORE THE VIGILANCE COURT,THRISSUR. EXT.P7:- COPY OF THE FINAL LIST OF CANDIDATES PUBLISHED BY THE RETURNING OFFICER. P8:- COPY OF THE BYE LAWS OF THE IST RESPONDENT SOCIETY. P9:- COPY OF THE STAFF PATTERN OF THE IST RESPONDENT SOCIETY. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.31346 of 2011 ----------------------------------------- Dated this the 29th day of November, 2011 JUDGMENT The petitioner is a member of the second respondent co- operative society. The election to the Managing Committee of the second respondent society is scheduled to be held on 4.12.2011 in terms of Ext.P1 notification dated 31.10.2011 issued by the first respondent Returning Officer. As per Ext.P1 notification, the last date for submission of nominations was 21.11.2011, the scrutiny was to be held on 22.11.2011 and the final list of candidates was to be published on 23.11.2011. After the election notification was published, the third respondent and others, altogether 33 in number, submitted nominations. When the nominaion papers were taken up for scrutiny, the petitioner filed Ext.P2 objections contending that Sri.T.K.Porinchu, one among the candidates, is disqualified on two grounds; the first ground being that his niece, who is stated to be the fourth respondent herein, is working as Head Nurse in the hospital wing of the second respondent society and therefore, he is disqualified under rule 44(1)(b) of the Kerala W.P(C).No.31346 of 2011 -:2:- Co-operative Societies Rules. It was also contended that a vigilance case is pending against Sri.T.K.Porinchu and therefore, on that score also he is disqualified from contesting the elections. This writ petition is filed contending that without enquiring into the objetions raised by the petitioner, Ext.P7 final list of candidates was published on 23.11.2011 accepting the nomination filed by Sri.T.K.Porinchu. In this writ petition the petitioner challenges Ext.P7 final list of candidates and seeks a declaration that Sri.T.K.Porinchu, joined the third respondent herein is ineligible to contest the elections. 2. I heard Sri.M.Sasindran, learned counsel appearing for the petitioner, Sri.D.Somasundaram, learned Special Government Pleader appearing for the first respondent, Sri.P.N.Mohanan, learned counsel appearing for the second respondent and Sri.George Poonthottam, learned counsel appearing for the third respondent. Sri.M.Sasindran, learned counsel appearing for the petitioner, contended relying on the decision of a Division Bench of this Court in Joint Registrar v. Gopalakrishna Pillai, 2009 (4) KLT 824 that the relationship has to be understood with reference to the employee of the society and not with reference to the candidate and therefore, as the third respondent is the W.P(C).No.31346 of 2011 -:3:- maternal uncle of the fourth respondent, a paid employee of the society, he is disqualified under rule 44(1)(1b)from contesting in the elections. The learned counsel contended that the third respondent, who has acted against the interests of the society, is liable to be expelled from the membership of the society in terms of section 17 of the Kerala Co-operative Societies Act and is therefore disqualified under rule 35(3)(d)(iii) of the Kerala Co- operative Societies Rules. The learned counsel also contended that the Returning Officer did not conduct an enquiry into the objection raised by the petitioner to the candidature of the third respondent, that he did not enquire with the third respondent as to whether the fourth respondent is his niece and therefore, the inclusion of the name of the third respondent in the final list of candidates is illegal. 3. Per contra, Sri.D.Somasundaram, learned Special Government Pleader appearing for the first respondent, submitted with reference to the files, that two persons having the same name, namely Sri.T.K.Porinchu, and the same address submitted nominations, that in the objections raised by the petitioner (Ext.P2) the objection was to the candidature of Sri.T.K.Porinchu that the Returning Officer considered the objections raised by the W.P(C).No.31346 of 2011 -:4:- petitioner to the candidature of both the candidates (Sri.T.K.Porinchu with membership number 12078 and Sri.T.K.Porinchu with membership number 12094) and held that in the absence of any material to show that either one of them is related to Smt.K.D.Jancy, the objections cannot be sustained. The learned Special Government Pleader also made available to me the files containing the decision of the Returning Officer. The learned counsel appearing for the petitioner contended that the objection was raised with regard to the candidature of the third respondent with membership number 12078 and therefore, the Returning Officer ought to have enquired whether the fourth respondent is related to the third respondent, instead of taking shelter on the ground that yet another candidate with the same name is also a candidate in the election. The learned Government Pleader submitted that though initially in Ext.P2 the membership number of the candidate, whose candidature was objected to, was not given, later the number 12078 was entered. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Ext.P7 final list of candidates discloses that two candidates with the same name, namely Sri.T.K.Porinchu, had filed nominations. In the objection W.P(C).No.31346 of 2011 -:5:- raised by the petitioner he had only objected to the nomination submitted by Sri.T.K.Porinchu. The two candidates have the same address. The father of Sri.T.K.Porinchu, with membership number 12094 is Sri.T.P.Kochappu and of Sri.T.K.Porinchu with membership number 12078 is Sri.T.P.Kochuvareed. The petitioner has not stated in Ext.P2 objections stated with certainty as to who among the two candidates with the same name is related to the fourth respondent, though the membership number of the candidate, whose candidature was objected to, was later shown as 12078. 5. A learned single Judge of this Court has in Anto v. Jackson, 1993 (1) KLT 586, held that the enquiry contemplated under rule 35(3)(e)(ii) is an enquiry of a summary nature, that the Returning Officer cannot embark upon an elaborate trial based on the objections raised to the nomination of candidates, that in a summary enquiry it is not necessary to record elaborate reasons and if the Returning Officer is expected to record elaborate reasons in support of his decision, the enquiry would no longer be a summary enquiry. It was held that if the Returning Officer scrutnised the nomination papers after adverting to the objections raised by the rival candidate or his agent and finally concluded W.P(C).No.31346 of 2011 -:6:- that the nomination papers should be accepted, it constitutes an enquiry as contemplated by rule 35(3)(e)(ii) of the Kerala Co- operative Societies Rules. In the instant case, it is not in dispute that the two candidates having the same name and same address are contesting the elections. In such circumstances I am of the opinion that the Returning Officer could not have conducted a roving enquiry to find as to who among the two candidates is related to the fourth respondent. If as alleged by the petitioner any one among the two candidates having the same name is related to the fourth respondent herein and the fourth respondent is a paid employee of the society, his remedy in my opinion, is to institute appropriate proceedings after the election is held challenging the election of the returned candidate, if any one of the candidates with the same name is returned. 6. A Division Bench of this Court has in W.A.No.1732 of 2004 held that a dispute arising at any stage of the election commencing from the convening of the General Body meeting shall be deemed to be a dispute arising in connection with the election and if objections to the eligibility of candidates are overruled, such a dispute will also fall within the definition of the term 'dispute' occurring in section 69(2)(c) of the Kerala Co- W.P(C).No.31346 of 2011 -:7:- operative Societies Act. In the light of the binding decision of this Court in W.A.No.1732 of 2004, I am of the opinion that even if one among the two candidates with the same name is returned and he is related to a paid employee of the society, the petitioner is not left without any remedy. If he is aggrieved by the result of the election he can institute appropriate proceedings after the election is held, challenging the election of the returned candidate, who according to him is related to a paid employee of the society. 7. The learned counsel for the petitioner contended relying on rule 35(3)(d)(iii) of the Kerala Co-operative Societies Rules and section 17 of the Kerala Co-operative Societies Act, that the third respondent who has acted against the interests of the society is liable to be expelled from the membership of the society and therefore it has to be held that he is disqualified to be a member of the society. The petitioner has no case that the General Body of the society has resolved to expel the third respondent from the membership of the society. He has also no case that the General Body is proposing to take up a resolution moved by him or anyone else to expel the third respondent from the membership of the society. He has no case that a notice under section 17(2) has been issued to the third respondent. In such circumstances as the W.P(C).No.31346 of 2011 -:8:- third respondent continues to be a member of the society, even assuming to the sake of arguments that he has acted contrary to the interests of the society, until such time as he is expelled from membership, the mere fact that he may be liable to be expelled later is not a reason to hold that he is disqualified to be a candidate for the election scheduled to be held on 4.12.2011. I accordingly hold that there is no merit in the writ petition. The writ petition fails and it is dismissed with the observation that the dismissal of the writ petition will not stand in the way of the petitioner from challenging the election of any candidate, if he is aggrieved by the result of the election, in other appropriate proceedings. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.31346 of 2011 ---------------------------- JUDGMENT 29th November, 2011