Absence of the date and place in the affirmation does not affect the contents of the declaration: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY THE 15TH DAY OF FEBRUARY 2021 26TH MAGHA 1942 WP(C).No.3653 OF 2021(F SUNIL BABU T.C AGED 44 YEARS S O CHINNAPPAN THANIKKAL HOUSE PALLIKUNNU P.O KALPETTA VAZHI WAYANAD DISTRICT THE KERALA STATE CO OPERATIVE ELECTION COMMISSION 3RD FLOOR CO OPERATIVE BANK TOWERS VIKAS BHAVAN P.O.THIRUVANANTHAPURAM 695 033 REPRESENTED BY ITS THE RETURNING OFFICER FOR THE ELECTION TO THE MANAGING COMMITTEE OF THE PALLIKUNNU DAIRY CO OPERATIVE SOCIETY D 1940 APCOS PALLIKUNNU P.O.WAYANAD DISTRICT 673 121 HAVING COME UP FOR ADMISSION ON 15.02.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING Petitioner herein submitted Ext.P2 nomination as a candidate in the election to the governing body of the third respondent Co operative Society to the SC ST reserved vacancy. The nomination was rejected by the Returning Officer on 09.02.2021 the date of scrutiny by Ext.P3 order on the premise that the nomination paper was incomplete since place and date was not written in the declaration by the candidate. This order is under challenge in the present proceedings Heard the learned counsel for the petitioner learned counsel for the Election Commission and the learned counsel for the Co operative Society. Essentially issue is that in Ext.P2 there is a declaration to be affirmed by the candidate contesting to the SC ST reserved constituency However the candidate did not fill up the date and place. It seems that the above application is complete in all other aspects. Hence the only question that is to be considered is whether the above defect in the declaration part of the nomination paper constitutes a major defect affecting the affirmation made by such candidate. Learned counsel for the petitioner invited my attention to Rule 35A(6)(e)(i) proviso which provided that the nomination of a candidate shall not be rejected merely on the ground of an incorrect description of the name or of the proposer or of seconder or of any other particulars relating to the candidate or proposer or seconder as entered in the list of members referred to in clauseif the identity of the candidate proposer or seconder as the case may be is established beyond reasonable doubt. The contention of the learned counsel for the petitioner was that from the averments in the body of the affirmation there is nothing to doubt the identity of the candidate. The place and date assumes no relevance in so far as the contents of the affirmation was concerned it was contended. To substantiate his contention learned counsel relied on the decisions reported in Pankajaksha Panicker v. Venugopalan Nairand Santhosh v. Joint Registrarcannot apply Evidently the rejection of the application was on the ground that nomination paper was incomplete. Regarding the crucial aspect that is to be taken care of while evaluating such errors learned Single Judge in Santhosh s casehad stated at paragraph 4 that the appending of their signatures by the candidate in the declaration and of the proposer and the seconder in the nomination is of vital importance. Any defect in it can render the nomination invalid. The scrutiny of the nomination by the Returning Officer should be geared to see whether the aforesaid factors have been established particularly the identity of the candidate the proposer and the seconder with reference to their membership in the 6. When the above defect is appreciated in the background of the law laid down by the learned Single Judge it is clear that absence of the date and place in the affirmation part does not in any manner substantially affect the contents of the declaration. Incomplete nature of the nomination does not in any manner vitally affect the affirmation Having considered in this perspective I find that rejection of nomination by Ext.P3 order was on legally unsustainable grounds. Necessarily impugned order is liable to be set aside In the result Writ Petition is allowed. Ext.P3 order is set aside and Ext.P2 nomination will stand accepted. All consequential steps shall be taken by the Returning Officer in this regard. Returning Officer shall proceed with the election in accordance with the Rules. PETITIONER S EXHIBITS A TRUE COPY OF THE NOTIFICATION DATED JANUARY 11 2021 ISSUED BY THE FIRST A TRUE COPY OF THE NOMINATION PAPER SUBMITTED BY THE PETITIONER DATED 8 A TRUE COPY OF THE ORDER DATED 9 FEBRUARY 221 ISSUED BY THE SECOND RESPONDENT A TRUE COPY OF THE JUDGMENT OF THIS HON BLE COURT IN PANKAJAKSHA PANICKER VS VENUGOPALAN NAIR (1193 KHC 389 DB A TRUE COPY OF THE JUDGMENT OF THIS HON BE COURT IN SANTHOSH VS JOINT REGISTRAR 91994

Summary: The absence of the date and place in the affirmation part does not in any manner substantially affect the contents of the declaration. This was observed by the Court, in the matter of SUNIL BABU T.C vs. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION &amp; ORS. [WP(C).No.3653 OF 2021(F)]. The judgement was pronounced by HONOURABLE MR. JUSTICE SUNIL THOMAS. The petition states that nomination of the petitioner as a candidate in the election to the governing body of the third respondent/Co-operative Society to the SC/ST reserved vacancy was rejected by the Returning Officer on the premise that the nomination paper was incomplete since place and date was not written in the declaration, by the candidate. Evidently, the rejection of the application was on the ground that, nomination paper was incomplete. But it was established that the appending of their signatures by the candidate in the declaration and of the proposer and the seconder in the nomination is of vital importance. Any defect in it can render the nomination invalid. The contention of the learned counsel for the petitioner was that, from the averments in the body of the affirmation, there is nothing to doubt the identity of the candidate. The place and date assume no relevance in so far as the contents of the affirmation were concerned, it was contended. To substantiate this contention, learned counsel relied on the decisions reported in Pankajaksha Panicker v. Venugopalan Nair (1993 KHC 389) and Santhosh v. Joint Registrar (1994 KHC 314). The judgement stated, “It is clear that, absence of the date and place in the affirmation part does not in any manner substantially affect the contents of the declaration. Incomplete nature of the nomination does not in any manner vitally affect the affirmation. Having considered in this perspective, I find that, rejection of nomination by Ext.P3 order was on legally unsustainable grounds. Necessarily, impugned order is liable to be set aside. In the result, Writ Petition is allowed. Ext.P3 order is set aside and Ext.P2 nomination will stand accepted. All consequential steps shall be taken by the Returning Officer in this regard. Returning Officer shall proceed with the election in accordance with the Rules.”