IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 28947 of 2008(U) -------------------------------------- PETITIONERS: ----------------------- 1. K.K. DHARMAPALAN, (MEMBER NO.1), KADAVIL HOUSE, TRANSIT VILLA, P.O. KANJANI, TRICHUR. 2. V.K. ASHOKAN, (MEMBER NO. 97) VECHELA HOUSE, ELTHURUTH P.O., LALOOR, THRISSUR. 3. SHEEBA, W/O ASOKAN, (MEMBER NO.98), VECHELA HOUSE, ELATHURUTH P.O., LALOOR, THRISSUR. 4. SURESH K.S., (MEMBER NO. 106), KANNATHULLY HOUSE, ELATHURUTH P.O., LALOOR. 5. M.A.HARIDAS, (MEMBER NO. 105), MANNATH HOUSE, P.O. ELTHURUTH, LALOOR. 6. MANIKUTTY P.K., (MEMBER NO. 101), KRISHNA PUTHUVEETTIL, KLR ROAD, NELLISSERY P.O.. BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENTS: ----------------------- 1. RETURNING OFFICER (CO-OPERATIVE INSPECTOR, ADAT UNIT), THE TRICHUR DISTRICT HUMAN RESOURCES DEVLOPMENT CO-OPERATIVE SOCIETY LTD., REG. NO.R.1197, PUTHENPURAKAL BUILDING, POOTHOLE ROAD, TRICHUR 680 004. W.P.(C) NO.28947/2008 2. THE TRICHUR DISTRICT HUMAN RESOURCES DEVELOPMENT, CO-OPERATIVE SOCIETY LTD., REG. NO. R. 1197, PUTHENPURAKAL BUILDING, REPRESENTED BY THE PART TIME ADMINISTRATOR. *ADDL. R3 IS IMPLEADED 3. MOHANAN M.R., NEDIYATH, P.O. MUNDOOR, THRISSUR. ADDL. R3 IS IMPLEADED AS PER ORDER DT. 3.10.2008 IN IA. NO.12554/08 ADV. SRI.P.RAMAKRISHNAN FOR ADDL.R3 GOVERNMENT PLEADER SRI.K.C.SANTHOSH KUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.28947 OF 2008 ------------------------------------------- Dated this the 15th day of October, 2008 JUDGMENT I have perused the original nomination forms submitted by the petitioners. The Returning Officer is present with the entire file. 2. Petitioners, 6 in number, state that their nominations have been rejected without stating any reason and also without communicating any order to that effect. All that has been done by the Returning Officer is that an order has been issued as regards petitioners 1 and 2 which also is quite vague. Going by the precedents of this Court, the Returning Officer is well within authority to decide on the issue of eligibility of a candidate, including as to whether he is a defaulter to the society, to the committee of which the election is being held. 3. The nomination papers of petitioners 2 to 6 are rejected on the ground that they have not paid the share contribution. WPC.28947/08 Page numbers Payment of share contribution is sine qua non for a person admitted to membership, to exercise the right of a member, including the right to vote in terms of the Kerala Co-operative Societies Act and Rules. Therefore, while non-payment of share contribution would be a valid ground, the question whether there was non-payment or not has to be ascertained with reference to the materials that could be produced by the candidates and cross checking it with the records of the society. Since the Returning Officer has the jurisdiction to decide on that issue, he is empowered to carry out that exercise. The petitioners state that they are in possession of receipts and identity cards evidencing payment of share value. There appears to be some dispute on this because the Administrator takes the stand that petitioners 2 to 6 have not paid the share contribution. The minimum requirement, therefore, is that the Returning Officer will have to examine those documents and not merely depend on any statement of the Administrator. Petitioners 2 to 6 are also entitled to an opportunity to produce the documents in support of their claims. WPC.28947/08 Page numbers 4. As regards the first petitioner, the ground of rejection is that he is a defaulter with reference to a loan account. Going by the endorsement by the Returning Officer on the nomination paper of the first petitioner, the type of loan is evidenced, but no loan number or identity is disclosed. The Returning Officer has placed materials which may tend to show that the first petitioner was a guarantor for a facility availed by a private limited company. The question whether he was given a notice demanding the outstandings and whether he is a defaulter in terms of the Act and Rules have also to be decided by the Returning Officer. 5. Without the aforesaid exercise being carried out in relation to the petitioners, it is inappropriate to have rejected their nomination papers. 6. For the aforesaid reasons, the rejection of the nomination papers of petitioners 1 to 6 are set aside and the Returning Officer is directed to decide on the objections to the nominations WPC.28947/08 Page numbers of the petitioners in accordance with law and further proceed with the process accordingly. As of now, in terms of the interim orders, the polling which was scheduled to be on 11.10.2008 stands re-scheduled to 26.10.2008. The petitioners are, therefore, directed to appear before the Returning Officer at 4 p.m. tomorrow. The Administrator is also directed to produce the books which are maintained in the regular course of business of the society for the purpose of recording the receipt of share value etc. The Share Certificate Register and Share Register shall also be made available to the Returning Officer. The Returning Officer will ensure that a decision is taken by him on the basis of the materials produced, after putting such materials to the petitioners also, if they are present. It is clarified that all nominations which have been accepted until now will stand, however, that the Returning Officer will bestow attention to the contentions of the petitioners that a different yardstick has been applied in accepting the nominations of those persons. It is further ordered that the decision making process regarding the WPC.28947/08 Page numbers nominations shall conclude before 2 p.m. on 17.10.2008 and the polling shall be held on 26.10.2008, as scheduled. It is further clarified that these directions and this judgment do not stand in the way of any issue that may arise in relation to the election, after the exercise as aforesaid is undertaken by the Returning Officer. If decision on the nomination papers are adverse to the interest of the petitioners, the Returning Officer will issue copy of that decision to them, stating reasons. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.