IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 33428 of 2008(D) ---------------------------------------- PETITIONER(S): ------------------------ V.T.CHANDRAN, S/O.THANKAPPU, AGED 46 VATTAMPARAMBIL HOUSE, VELUR P.O., THRISSUR DT. BY ADV. SRI.G.KRISHNAKUMAR SMT.M.P.RETHNAM RESPONDENT(S): ------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THRISSUR. 2. THE RETURNING OFFICER, VELUR SERVICE CO-OP.BANK LTD.NO.465, VELUR P.O., THRISSUR, (MRS.SICY, SENIOR CO-OP.INSPECTOR, OFFICE OF THE ASST.REGISTRAR (GENERAL), THALAPPILLY TALUK, THRISSUR. 3. VELUR SERVICE CO-OPERATIVE BANK LTD NO.465, VELUR, THALAPPILLY TALUK, THRISSUR, REPRESENTED BY ITS SECRETARY. 4. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. *ADDL. R5 IS IMPLEADED 5. JOMY JOSE, MEMBER NO.8669, OLEKKENGIL HOUSE, VELUR, THRISSUR. ADDL. R5 IS IMPLEADED AS PER ORDER DT. 17.11.08 IN IA. 14608/2008. ADV. SRI.C.D.DILEEP FOR R3 SRI.P.C.SASIDHARAN FOR R5 GOVERNMENT PLEADER SRI.I.V.PRAMOD FOR R1, 2,4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.33428 of 2008-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of November, 2008. JUDGMENT 1.This writ petition is filed challenging the rejection of the petitioner's nomination to the election to the committee of the 3rd respondent co-operative bank. It is the assertion of the petitioner that the rejection order, thereby meaning the decision of the Returning Officer rejecting the nomination, has not been issued by him, though the petitioner repeatedly had requested for it. The petitioner, therefore, criticizes the 2nd respondent Returning officer on various grounds and assumes for himself that the ground of rejection is that the petitioner's wife is conducting a business and hence, the petitioner's nomination has been rejected on ground that there is a nexus between the business activity of the petitioner and his wife. Still WP(C)33428/08 -: 2 :- further, he goes to demonstrate that he has nothing to do with any business activity which is attributable to his wife. He even says that the individual rights of a person and his freedom do not get tied down by the 'mangalasoothra'. These contentions are essentially in the air, for the very simple reason that on the learned Government Pleader making available the copy of the nomination paper of the petitioner, it is seen that the ground of rejection of the nomination is that the Returning Officer has taken the view that the affidavit of the candidate is not correct in as much as the documents produced by Sri.C.P.Philip, Sri.C.N.Prabhakaran and Sri.Jomy J. disclose that proceedings under Rule 44(1) of the KCS Act(Rules?) is still pending against the candidate and that he has not stated it in his affidavit. Therefore, the foundation of the pleadings in the writ petition goes. 2.In view of the fact that the petitioner's assertion is that he was not given a copy of the WP(C)33428/08 -: 3 :- decision of the Returning Officer, I am inclined to go into the sustainability of the decision of the Returning Officer. 3.In this context, it needs to be noted that the impleaded additional respondent has placed on record different materials on the basis of which it is shown that there are different allegations among the members of the bank regarding the conduct of the petitioner. It is stated that while the petitioner was in office as the President of the society, his conduct had resulted in winding up the consumer stores of the co-operative society and the closure of such commercial establishment has only paved way to the growth of the private establishment of the petitioner and his wife. It is further alleged that the petitioner had misutilized a mobile phone by paying its charges from the account of the society and utilizing it for the business of his wife's establishment. This is also attempted to be demonstrated with reference to the material WP(C)33428/08 -: 4 :- printed in connection with the inauguration of the establishment stated to be run by petitioner's wife. 4.In answer to the above allegations, the petitioner attempts to state that he has nothing to do with that business and even his wife is not involved in running any establishment, though at one point of time, the petitioner's wife was one of the partners of a firm and she had resigned from it and that the said firm is now running with different partners. 5.Whatever that be, the focus of the learned counsel for the additional 5th respondent during the course of arguments is to demonstrate that the writ court would not necessarily step in, in all cases of illegality except in cases of grave injustice, particularly when it is demonstrated that the petitioner has not come to the Court with clean hands and that he has suppressed material facts. The assertions and counter WP(C)33428/08 -: 5 :- assertions revolve around the different transactions on which certain allegations are raised. Still further, learned counsel for the additional 5th respondent argued that the grounds stated by the Returning Officer to reject the nomination of the petitioner cannot be treated as not available at all in as much as there is an order under Rule 44(1) of the Kerala Co-operative Societies Rules, 1969, hereinafter, the “Rules”, disqualifying the petitioner and even if this Court has granted any interim order of stay of operation of that order in WP(C).9932/2008, that would have no impact of such a nature as would result in the wiping off, of the effect of the said order under Rule 44(1), while such order of stay could be treated as only one placing the disqualification order in a state of suspended animation. 6.The Returning Officer does not appear to have a case, through the learned Government Pleader, that the decision taken on the nomination of the WP(C)33428/08 -: 6 :- petitioner was communicated to him, while the petitioner is accused of not having collected it or requested for it. Under such premise, rather than go by pleadings made without having the complete facts which may be relevant, it needs to be considered whether the ground stated by the Returning Officer for rejecting the nomination of the petitioner was an available one in accordance with law. This is because, the jurisdiction of the Returning Officer to reject a nomination is essentially dependent exclusively on his statutory power to do so in terms of the provisions of the Kerala Co-operative Societies Act, 1969, hereinafter, the “Act” and the Rules. There is no discretion in that matter. Viewed in this angle, it has necessarily to be considered whether the Returning Officer acted in terms of law in accepting the objection to the nomination that the affidavit does not disclose the disqualification. 7.A perusal of the prescribed form of a nomination WP(C)33428/08 -: 7 :- paper in terms of the Act and Rules shows that the candidate has to make an affidavit in the prescribed form which contains a statement that he does not have any disqualification in terms of the Act and Rules and also the bye-laws of the society in question. Rule 44(1) of the Rules is a rule prescribing a disqualification and any order of disqualification thereon would essentially be one that would fall as a disqualification which has to be disclosed in a nomination. The learned counsel for the additional 5th respondent is, to a larger extent, right in stating that on the face of any disqualification order under Rule 44(1), it would be necessary for the candidate to disclose it in the nomination and it would be then for the Returning Officer to decide as to whether such disqualification continues to subsist. But then, a perusal of the records in WP(C).9932/2008 shows that what has been stayed therein is the notice for proceedings that could have led to an order under Rule 44(3) and there is really no WP(C)33428/08 -: 8 :- disqualification order against the petitioner and what is stayed by the interim order in WP(C). 9932/2008 is further proceedings on the basis of the notice dated 14-3-2008, which is Ext.P1 in that case. Therefore, as on the last date for the submission of nomination, Ext.P1 notice stood stayed and it is that fact situation which should govern the parties. So much so, the prima facie finding or view which has generated that notice, does not necessarily amount to or result in a disqualification order in terms of Rule 44(1) and hence, in the absence of the objectors having placed any such material before the Returning Officer demonstrating the issuance of a disqualification order under Rule 44(1), it was impermissible for the Returning Officer to reject the nomination of the petitioner in this case. Hence, the impugned action of the Returning Officer rejecting the nomination of the petitioner is without jurisdiction. The same is, therefore, null and void and is hence liable to be quashed. WP(C)33428/08 -: 9 :- 8.In the result, this writ petition is allowed quashing the rejection of the nomination of the petitioner and directing that his nomination shall be accepted and he shall be treated as a candidate for the election in question. The learned Government Pleader will communicate the gist of this judgment to the Returning Officer immediately for appropriate action. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/201108