Kerala High Court
Sunil Babu T.C vs The Kerala State Co-Operative ... on 15 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942
WP(C).No.3653 OF 2021(F)
PETITIONER:
SUNIL BABU T.C
AGED 44 YEARS
S/O CHINNAPPAN, THANIKKAL HOUSE, PALLIKUNNU P.O.
KALPETTA VAZHI, WAYANAD DISTRICT.
BY ADVS.
SRI.JACOB SEBASTIAN
SRI.K.V.WINSTON
SMT.ANU JACOB
RESPONDENTS:
1 THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION
3RD FLOOR, CO-OPERATIVE BANK TOWERS, VIKAS BHAVAN
P.O.THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS
SECRETARY
2 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, (THE DIARY
DEVELOPMENT OFFICER, DAIRY DEVELOPMENT SEVANA UNIT,
PANAMARAM, WAYANAD DISTRICT-673 121)
3 PALLIKUNNU DAIRY CO-OPERATIVE SOCIETY,
D 1940 APCOS, PALLIKUNNU P.O.WAYANAD DISTRICT-673
121, REPRESENTED BY ITS SECRETARY
OTHER PRESENT:
SC SRI.R.LAKSHMI NARAYAN,SC
SRI.M.SASINDRAN,
SR.GP K.P HARISH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C).3653/2021
2
JUDGMENT
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.
2. Heard the learned counsel for the petitioner, learned counsel
for the Election Commission and the learned counsel for the Co-operative
Society.
3. 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
W.P(C).3653/2021
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
clause (b) if 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 Nair (1993 KHC
389) and Santhosh v. Joint Registrar (1994 KHC 314).
4. Contradicting the above contention, learned counsel for the
Election Commission contended that, above Rule has no application to the
facts of the case, since the application was rejected not for the reason
that there was any incorrect statement, but the application was rejected
on the ground that it was incomplete. Consequently, the above proviso to
Rule 35A(6) cannot apply.
5. 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 case (supra) had 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
W.P(C).3653/2021
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
society.
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.
Sd/-
SUNIL THOMAS
Sbna JUDGE
W.P(C).3653/2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE NOTIFICATION DATED
JANUARY 11,2021 ISSUED BY THE FIRST
RESPONDENT
EXHIBIT P2 A TRUE COPY OF THE NOMINATION PAPER
SUBMITTED BY THE PETITIONER DATED 8
FEBRUARY 2021
EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 9 FEBRUARY
221 ISSUED BY THE SECOND RESPONDENT
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN PANKAJAKSHA PANICKER VS
VENUGOPALAN NAIR (1193 KHC 389 DB)
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT OF THIS HON'BE
COURT IN SANTHOSH VS JOINT REGISTRAR 91994
KHC 314)
