IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 5605 of 2009(U) ------------------------- PETITIONER(S): 1 ---------------- PRAKASAN.C.S,FORMER DIRECTORS OF THE POOTHADY SCB KENICHIRA, WAYANAD-673596 NOW RESIDING AT CHURUNAMALAYIL, KOLERI, WAYANAD DISTRICT. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): --------------- 1. RETURNING OFFICER TO POOTHADY SERVICE CO-OPERATIVE BANK, UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, SULTHAN BATHERI, WAYANAD. 2. THE POOTHADY SERVICE CO-OP. BANK LTD.NO. F.1011,REPRESENTED BY ITS SECRETARY/ADMINISTRATOR, KENICHIRA, WAYANAD-673596. 3. CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY SECRETARY, OFFICE OF THE CO;OP ELECTION COMMISSION, TRIVANDRUM. BY SRI M. SASINDARAN FOR R2 BY GP SRI I V PRAMOD ADV. SRI.P.C.SASIDHARAN FOR ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/02/2009, ALONG WITH WPC NO. 5606 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NOs. 5605 & 5606 OF 2009 ............................................ DATED THIS THE 27TH DAY OF FEBRUARY, 2009 JUDGMENT The petitioners submitted nominations for the election to the committee of the second respondent, Co-operative Bank, in terms of a notification issued on 31.1.2009. The depositors of that bank have a constituency which include two wards, Valiambam and Irulam. Those two constituency wards are to be filled from among the depositors, who have a deposit with the bank, of not less than Rs.25,000/- for a period more than 180 days before the submission of nominations. The candidate , if elected, has to maintain that deposit during the currency of the committee. 2. The nomination papers of the petitioners were rejected on the ground that they had taken loans from the bank in question and therefore are incompetent to contest to the constituencies earmarked for the depositors. The stand of the official respondents appear to be that when a loan is taken, it amounts to withdrawal of the deposit to that extent. WP(C)NOS.5605 & 5606/09 2 3. The date fixed for scrutiny of the nominations was 18.2.2009 and these writ petitions are filed on 19.2.2009. Later, the rival candidates have also filed applications for impleadment and applications for impleadment of the rival candidates were also placed by the petitioners. 4. On the basis of the pleadings on record, the matter was argued quite elaborately on 22.6.2009. Then, faced with the plea of the respondents that a writ in the nature of mandamus as sought for in the writ petition, would not be issued on the basis of the statutory decision of the Returning Officer rejecting the nomination, the learned counsel for the petitioners sought an adjournment to file applications for amendment. That request was granted, having regard to the law laid by the Apex Court in Prabodh Verma V.State of U.P(1984(4)SCC 251). Consequently, when this matter is taken up today, IA 2981 and 2982 of 2009 are filed seeking leave to amend the writ petitions, by including a relief of certiorari to quash the decision of the Returning Officer, rejecting the nomination and also seeking a declaration as to the entitlement to be included in the list of eligible candidates. WP(C)NOS.5605 & 5606/09 3 5. While the plea of the petitioners is that in terms of Section 59(2) of the Kerala Co-operative Societies Act(in short, the Act), the deposit, loan and security are understood differently and appropriately and that there is no ground to hold that availing a loan would amount to withdrawal of the deposit, it is contended on behalf of respondents that, that issue may be one of mixed question of law and fact and the question whether the loan is availed by withdrawal or not, from the deposit is a matter to be examined on the basis of records. Prima facie, I would be inclined to take the view that, what Section 59(2) authorises, is the grant of a loan by treating a fixed deposit as a security. If that were so, stricto senso, drawal of a loan from the bank would not amount to withdrawal of all or any portion of the deposit. Left to myself, I also do not find any ground to hold that this issue cannot be decided in the writ jurisdiction, primarily because the issues could be answered on admitted facts and interpretation of law. Therefore it would not be wrong for this court to decide this matter even on merits. 6. But then, the issue would be as to whether it would be advisable to do so. Equally important is the question whether the WP(C)NOS.5605 & 5606/09 4 writ court is to interfere at this point of time. This is because, with the matter being listed today, we are not even 48 hours away from the date fixed for polling, which is the day after tomorrow, viz, 1st of March 2009. To consider the balance of convenience in the situation, it needs to be examined as to whether petitioner has the right to sustain an election dispute on the issue in hand. The question essentially is one of rejection of nomination. Illegal or erroneous rejection of nomination is a ground to be urged to set aside the election. Therefore the matter in hand would fall within Section 69 of the Act. 7. From and after the date of scrutiny of nominations, the opponents of the petitioners could necessarily rest under the impression that they need not contest the election. They need not canvass for the votes. The total number of voters is about 8000 to 10,000. If I were to grant even an interim order enabling the petitioners also to contest, I am of the considered view that it would only result in undue hardship to the opponents of the petitioners since within a day's time, they would not be able to effectively canvass votes for themselves. I may also immediately recall that even in the election under the RP Act, there is always WP(C)NOS.5605 & 5606/09 5 one to three days' gap, that is provided just before the date of polling, to keep away from campaigning, otherwise than by word of mouth and house visits. That has a laudable object. 8. At any rate, the time factor in the case in hand is exceptionally crucial and I do not therefore deem it appropriate to exercise the writ jurisdiction and would therefore leave the petitioners to work out their remedies under Section 69 of the Act. For the aforesaid reasons, these writ petitions and IA Nos.2981 and 2982 of 2009 are dismissed, without prejudice to the contentions and recourse to statutory remedies as stated above. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/27/2