Allowed

Sunil Babu T.C v. the Kerala State Co-Operative Election Commission

Kerala HC15 Feb 2021WP(C)/3653/2021

Case brief

AI extract

What is this about?

Petitioner challenged rejection of nomination for SC/ST reserved vacancy in a dairy co-operative society due to missing date and place in the declaration. Court held rejection on grounds of incompleteness unsustainable as defect did not vitally affect affirmation. Petition allowed.

What did the court decide?

Impugned order set aside; Ext.P2 nomination stands accepted; Returning Officer to proceed with election.

Sunil Babu T.C Vs the Kerala State Co-Operative Election… — Election Law | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942

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WP(C).No.3653 OF 2021(F)

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PETITIONER:

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SUNIL BABU T.C AGED 44 YEARS S/O CHINNAPPAN, THANIKKAL HOUSE, PALLIKUNNU P.O. KALPETTA VAZHI, WAYANAD DISTRICT.

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BY ADVS. SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB

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RESPONDENTS:

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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

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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)

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3 PALLIKUNNU DAIRY CO-OPERATIVE SOCIETY, D 1940 APCOS, PALLIKUNNU P.O.WAYANAD DISTRICT-673 121, REPRESENTED BY ITS SECRETARY

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OTHER PRESENT:

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SC SRI.R.LAKSHMI NARAYAN,SC SRI.M.SASINDRAN, SR.GP K.P HARISH

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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

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.

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Heard the learned counsel for the petitioner, learned counsel for the Election Commission and the learned counsel for the Co-operative Society.

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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

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W.P(C).3653/2021

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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) .

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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.

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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

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W.P(C).3653/2021

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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.

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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.

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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

JUDGE

Sbna

W.P(C).3653/2021

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE JANUARY RESPOND	COPY OF 11,2021 ENT	THE NOTIFICA ISSUED BY	TION THE	DATED FIRST
EXHIBIT P2	A TRUE SUBMITT FEBRUAR	COPY OF ED BY TH Y 2021	THE NOMINA E PETITIONER	TION DA	PAPER TED 8
EXHIBIT P3	A TRUE 221 ISS	COPY OF TH UED BY THE	E ORDER DATED SECOND RESPOND	9 FE ENT	BRUARY
EXHIBIT P4	A TRUE COURT VENUGOP	COPY OF THE IN PANK ALAN NAIR (	JUDGMENT OF T AJAKSHA PAN 1193 KHC 389 D	HIS ICKE B)	HON'BLE R VS
EXHIBIT P5	A TRUE COURT I KHC 314	COPY OF THE N SANTHOSH )	JUDGMENT OF VS JOINT REGI	THIS STRAR	HON'BE 91994

Sunil Babu T.C v. the Kerala State Co-Operative Election Commission

Case brief

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Sunil Babu T.C v. the Kerala State Co-Operative Election Commission

Case brief

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