Chandrababu vs The Electoral Officer /Assistant ...
2021 Latest Caselaw 8085 Ker

W.P.(C) No.5282/2021              1

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

    TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

                       WP(C).No.5282 OF 2021(I)


PETITIONER:

               CHANDRABABU
               AGED 53 YEARS
               S/O. LALITHA, A.K.NAGAR, KEEZHATTINGAL P.O.,
               KADAKKAVOOR, THIRUVANANTHAPURAM DISTRICT, PIN-
               695306.

               BY ADV. SRI.ADITHYA RAJEEV

RESPONDENT:

       1       THE ELECTORAL OFFICER /ASSISTANT REGISTRAR OF CO-
               OPERATIVE SOCIETIES (GENERAL)
               CHIRAYINKEEZHU, THIRUVANANTHAPURAM, PIN-695304.

       2       THE RETURNING OFFICER/UNIT INSPECTOR,
               CHIRAYINKEEZHU UNIT, OFFICE OF THE ASSISTANT
               REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
               CHIRAYINKEEZHU, THIRUVANANTHAPURAM, PIN-695304.

       3       THE STATE CO-OPERATIVE ELECTION COMMISSION,
               REPRESENTED BY ITS SECRETARY, 3RD FLOOR, CO-BANK
               TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-
               695033.

       4       THE KEEZHATTINGAL RURAL CO-OPERATIVE SOCIETY LTD.
               NO.T 1540,
               REPRESENTED BY ITS SECRETARY, KEEZHATTINGAL P.O.,
               THIRUVANANTHAPURAM DISTRICT-695101.

               R4 BY ADV. SRI.C.P.SABARI

OTHER PRESENT:

               SR.GP BIMAL K NATH, SC,SRI.R.LAKSHMI NARAYAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.5282/2021                  2




                                JUDGMENT

Dated this the 9th day of March 2021

Petitioner herein is a member of the 4 th respondent society with

membership No.552. He submitted nomination for the ensuing election to

the managing committee . Scrutiny of the nomination paper was held on

26/2/2021. On that day, petitioner's application was rejected on the

premise that he was a defaulter. According to the petitioner, he had availed

a credit facility from the 4th respondent society. Petitioner contended that

he had discharged the entire liability in November 2020 and was issued

with Ext.P2 receipt as well as Ext.P3 loan closure certificate dated

18/11/2020. In Ext.P3 it is stated that the petitioner does not have any

liability.

2. Learned counsel for the petitioner invited my attention to the

Division Bench decision of this court in Abdul Rasheed v. State of

Kerala (1988 KHC 137) wherein it was held that surety cannot be

disqualified under Rule 44 (1) of the Kerala Cooperative Societies Rules,

solely on the ground that the debtor has not discharged his debt, unless if

the surety was informed of the default and there was a demand from the

surety .

3. The petitioner has a specific contention that he is neither a

defaulter nor a notice as surety ever served on him. Though the learned

standing counsel for the society as well as the learned standing counsel for

the election commission tried to contend that the petitioner is a defaulter

and the application was rejected on valid ground and that an award is also

pending against the petitioner, the details of the award and whether any

notice was served on the petitioner are not forthcoming. Petitioner cannot

be called upon to establish that he has not been served with notice, which

is a negative fact.

4. Having considered the above facts, I feel that rejection of

nomination is without any definite and cogent materials. Hence, necessarily

nomination is liable to be accepted. However, in the absence of any

specific materials to establish whether a notice was issued to the petitioner

or not which still remains a disputed fact, I am inclined to direct the

petitioner to file an affidavit before the returning officer asserting that he is

not a defaulter and notice of demand has not been served on him. On

filing of such affidavit, nomination paper will stand restored and he will be

permitted to contest the election.

The writ petition is allowed as above.

Sd/-

                                                   SUNIL THOMAS

dpk                                                    JUDGE




                           APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1             A TRUE COPY OF THE IDENTITY CARD OF THE

PETITIONER DATED 7.12.2009 ISSUED FROM THE 4TH RESPONDENT SOCIETY.

EXHIBIT P2 A TRUE COPY OF THE RECEIPT DATED 18.11.2020 ISSUED BY THE 4TH RESPONDENT SOCIETY TO THE PETITIONER.

EXHIBIT P3 A TRUE COPY OF THE LOAN CLOSURE CERTIFICATE DATED 18.11.2020 ISSUED BY THE 4TH RESPONDENT SOCIETY TO THE PETITIONER.

EXHIBIT P4 A TRUE COPY OF THE ELECTION NOTIFICATION NO.E(2)817/2021/S.C.E.C. DATED 3.2.2021 PUBLISHED IN THE MATHRUBHOOMI DAILY DATED 10.2.2021.

EXHIBIT P5 A TRUE COPY OF THE RECEIPT DATED 25.2.2021 ACKNOWLEDGING THE SUBMISSION OF NOMINATION.