Judgment:
ORDER
T.L. Viswanatha Iyer, J.
1. It is unfortunate that despite the authoritative pronouncements of this Court in Damodaran v. Joint Registrar, 1989 (11) KLT 858, Anthravose v. Senior Inspector of Co-operative Societies, 1992 (2) KLT 489, Abraham v. Returning Officer, 1993 (1) KLT 548, Ravi v. Kottavam Co-operative Urban Bank, 1993 (1) KLT 644 and Pankajaksha Panicker v. Venugopalan Nair, 1993 (2) KLT 641, Returning Officers at elections to cooperative societies continue to reject nominations without any rhyme or reason, leading to proliferation of unnecessary avoidable litigation. The case on hand is one in point. I think it will be advantageous and fruitful if the Registrar of Co-operative Societies educates the Returning Officers about the recent decisions on the point as to the circumstances in which alone a nomination for election to the managing committee of a co-operative society may be rejected.
2. Briefly the facts. Elections to the managing committee of the Thiruvanantha-puram Dairy Employees Sahakarana Sangham Ltd. (the society for short), orwhich the petitioners are members, is proposed to be held on June 27, 1994. Thirty twonominations were filed, including those of the nine petitioners of which twentythree were rejected for one reason or other as mentioned in paragraph 12 of the counter-affidavit of the third respondent, Returning Officer. Since we are concerned only with the case of the petitioners, suffice it to say that the nominations submitted by all of them were founddefective for not containing the name of the society in the affidavit filed in support of the nominations. There were certain added grounds in the case of the petitioners 5 and 9 the column for signature and date in the attestation form of the affidavit being left blank in the case of the fifth' petitioner; and the date of election being not filled up in the affidavit of the ninth petitioner. In all other respects, the nominations were in order, but they were nevertheless rejected for the aforesaid defects. The petitioners are challenging the rejection of the nominations in this petition under Article 226 of the Constitution on the basis of the decisions mentioned earlier.
3. The learned Government Pleader SriD. Somasundaram, with, characteristic ability, gallantly defended the rejection on themerits, besides questioning the right of thepetitioners to approach this Court under Article 226 to have their nominations accepted,when they have been an effective post-electionremedy of challenging the election itselfunder Section 69 of the Kerala Co-operativeSocieties Act, 1969.
4. I shall deal with the merits first, but before doing so I may mention that a cue to the grounds on which a nomination may be rejected is afforded by the proviso to Rule 35(e)(ii) of the Kerala Co-operative Societies Rules (the Rules) which bars a rejection of the identity of the candidate or proposer or seconder is established beyond reasonable doubts, though that is not exhausing I shall extract the proviso:--
'Provided that the nomination of a candidate shall not be rejected merely on the ground of an incorrect description of his name or of the name of his proposer or seconder or of any other particulars relating to the candidate or his proposer or seconder as entered in the list of members referred to in clause (b) if the identity of the Candidate or proposer or seconder as the case may be is established beyond reasonable doubt'.
What are the normal requirements of a valid nomination? The following should be evident from the nomination paper :
(a) the name of the society :
(b) the identity of the candidates, the proposer and the seconder as established by their description with reference to name, address and membership number -- the last is very important as there may be more than one member with the same name as in the case of petitioners 5 and 9 in this writ petition.
(c) the genuineness of the proposal or seconding established by the proposer and the seconder appending their signature to the nomination paper; and
(d) declaration of the candidate, authenticated by his signature that he is willing to stand for the election (vide Rule 35(3)(c)(ii)).
There are matters of prime importance in the nomination paper, but the nomination is not liable to be rejected for some technical or clerical non-compliance with these requirements if the identities of the society and of the candidates, the proposer and the seconder in relation to the society, with reference to their membership numbers are otherwise clear from the nomination paper itself. 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 which 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 society.
5, There is no dispute in this case that the nomination papers filed by the petitioners do satisfy the above requirements. Even the declaration filed by the candidate has been properly made. The defect alleged is in the affidavit of the candidates filed along with the nominations. This affidavit is stated to be insisted on, pursuant to a circular issued by the Registrar of Co-operative Societies. In that affidavit the candidate affirms various things -- positive as well as negative -- that he has filed the nomination for the election to be held on (date), that he is qualified to be a member of the managing committee as per the bye-laws of the society and the Rules, that heis not a member of any other similar society, and like matters pertaining to his qualifications/disqualification. The affidavit is required to be attested by an Advocate/Gazetted Officer/Rectification Officer. The defects alleged in the petitioners' nominations are all in this affidavit and affidavit alone, and not elsewhere. The question is whether the Returning Officer was justified in rejecting the nominations for the alleged defects in the affidavit. I shall examine this question.
6. The nomination has to be made in the form prescribed by the society and to be supplied by it free of cost to the members (vide Rule 35(3)(c)(i)). The form prescribed by the society in question is printed on the front and reverse sides of a single sheet of paper, with the name of the society printed boldly on the front side, which contains besides, the actual nomination with names and details of the candidate, the propose and the seconder, as also the candidate's declaration, with all their signatures. The reverse side contains the affidavit in printed matter with certain blanks left for being filled up by the candidate like his name etc. as also the date of election. The form of attestation is also printed with the place and date of attestation left blank to be filled up at the time of attestation. Since it is the affidavit that forms the crux of the dispute between the parties, I may mention that it contains in elaborate detail what the declaration states briefly. The declarant affirms that the candidate mentioned in the nomination paper is himself, that he has consented to contest the election and that he is not disqualified in any manner from being a candidate at the election. The affidavit sets forth this affirmation in greater detail with specific reference to the various qualifications and disqualifications under the rules and the bye-laws. Though this is the position, and they serve more or less the same purpose, since the affidavit is also a requirement of the form prescribed by the society, necessarily that has also to be properly executed and attested for the purposes of a valid nomination. But that does not mean that any immaterial defect therein should be blown out of proportion to entail rejection of the nomination itself. And that is what has happened in this case.
7. The defect alleged as common to all the nominations is the non-writing of the name of the society in the descriptive part of the deponent in the affidavit. Insistence on this requirement appears to me to be perverse. There is no mention therein that the name of the society should be written out. In fact this requirement is out of place since the affidavit is on the reverse side of the nomination paper which contains the name of the society in bold relief. If the candidates were expected to write the name of the society in their own hand, it should have been so indicated: The candidates cannot be faulted for non-compliance with a requirement which finds no place in the nomination paper or in the affidavit. This is how the relevant portion of the affidavit reads:
(Vernacular matter omitted)
Candidates cannot be defeated of their rights by reading requirements which are not there in the affidavit. The ground of rejection, that the name of the society is not filled up in the affidavit, is an irrelevant one and therefore the rejection of the nominations on this ground is illegal. This is sufficient to allow the writ petition, so far as petitioners 1 to 4 and 6 to 8 are concerned.
8. I shall now turn to peritioners 5 and 9 who have got certain added defects saddled on them. It is only necessary to deal with these additional defects alleged. The fifth petitioner's affidavit was held to be defective because 'the column' for signature and date in the attestation form was left blank. The said 'column' which is the usual form of attestation of an affidavit runs thus :--
'Solemnly affirmed and signed before me (sic) the deponent in my office at..... this the.....day of 199.....
Advocate/ Gazetted Officer/ RectificationOfficer.'
It is the omission to fill up the blanks in the above that proved fatal to the nomination and entailed its rejection. The nomination paper in question was produced before me by the learned Government Pleader Sri Somasunda-ram and perusing the same, I find myselfunable to find any logic or reason in this ground of rejection. These blanks are to be filled up by the attesting officer. It is true a proper attestation is the sine qua non of an affidavit and if the attestation is not done as prescribed, the nomination paper may entail rejection. But I find no such difficulty in this case, as the affidavit of the fifth petitioner has been properly attested. The attesting officer has indicated that he is a Gazetted Officer. He has appended his signature and written the date of attestation in his own hand below the above form. He has affixed his seal as also the seal of his office, indicating that the attestation was at Thiruvananthapuram. The contents of the two blanks in the form of attestation have thus 'been given just below the printed form, and are sufficient to indicate conclusively the date and place of the attestation. I fail to understand as to what else is needed to constitute a valid attestation. I wonder how this attestation is irregular. The fact that the place and date of attestation were shown just below the form of attestation and not in the blanks themselves is, in my opinion, an inconsequential matter. What is important is the existence of a proper attestation which alone gives authentication to the affidavit, and if that is there, the fact that the place and date were written out by the attestor just below the space left for the purpose cannot invalidate the attestation or the nomination. In fact, there was no instruction in the nomination paper that the place and date of attestation shall be filled up only in the blanks left for the purpose. The Returning Officer has missed the substance of the matter and resorted to a hyper technical reason to reject the nomination. This disposes of the case of the fifth petitioner.
9. So far as the ninth petitioner is concerned he had not mentioned the date of the election in the space left blank for the purpose in the first paragraph of the affidavit. True, the date of the election does not find a place anywhere else in the nomination paper. But then, the date of the imminent election is a fact known to all and when a member of the society files a nomination on June 2, 1994 in the form obtained from the society, when the election is found the corner on June 27, it cancertainly not be for an election which may be held a few years hence. Commonsense, which should inform the actions of the Returning Officer, dictates that the nomination can only be for this election and none else. I am supported in this view by the decision of the Division bench in Pankajaksha Panickar's case, 1993 (2) KLR 641, though the learned Government Pleader attempted to make a distinction that in that case the date of election appeared at one place in the nomina-tion paper, but the Division Bench did note that the date of election was known to everybody and was not in dispute, which circumstances according to me render the absenc of the date in the nomination paper not a sufficient ground for rejection of the nomination. It is not as if some election or other is going on in a co-operative society everyday or periodically, to leave a doubt as to which election a candidate is contesting for on a particular nomination.
10. Right to contest at an election is a very valuable right. The attempt of the Returning Officer should be to preserve that right and not to defeat its on hyper technicalities, or immaterial defects which do not relate to the substance of the matter. There should indeed be a very careful and close scrutiny regarding the qualifications and disqualifications of the candidate, and as to whether the identity of the candidate, the proposer and the seconder has been established with reference to their membership in the society. It is also true that the signatures in the nomination, declaration and the affidavit as also the proper attestation of the affidavit are essential and material elements in the nomination. But beyond that, a pragmatic and commonsense view has to be taken and technicalities ought not to prevail when otherwise the nominations are without flaw and valid, as in this case. The attempt should be to enable the member to contest, instead of ejecting him at the threshold on the basis of immaterial inconsequential defects or mistakes in the nomination paper. It has to be remembered that the co-operative movement reaches out mpstly to the unsophisticated segments of society. Bona fide mistakes are likely to creep in, in the filling up of the nomination, by the neo-literates and semi-literates (there being no illiterates in this State). To throw out such nominations and the candidates from the electoral field by pandering to technicalities will be to strike a heavy blow at the democratic nature of the process involved and punishing them for what otherwise is an innocent mistake. This will be nothing but arbitrariness.
11. Before concluding I may briefly refer to the decisions of this Court regarding scrutiny of nomination papers, which support the view I have taken. In Damodaran, 1989 (1) KLT 858, the rejection of the nomination on the ground that the attesting authority had not affixed his rubber seal was held to be illegal and the nominations were directed to be received. In Anthravose, 1992 (2) KLT 489, the rejection was on the ground that the seal of the society containing its name was affixed instead of writing it by hand. This was quashed. Abraham, 1993 (1) KLT 548, was a case of mistaken mention of the date of election in the affidavit, 30-11-1992, instead of 21-12-1992. This was considered not fatal to the nomination. This affords a close parallel to the case of the ninth petitioner as the writing of a wrong date is as bad as not writing any date at all, if not worse. In Ravi, 1993 (1) KLT 644, the rejection was of the nomination of a person who had stood guarantor for a debt but who had not incurred any disqualification for want of intimation about the principal debtor's default, Pankajaksha Panickar, 1993 (2) KLT 641, related to a case where the column relating to date of election had been left blank. This was considered insufficient to entail rejection of the nomination.
12. The above line of decisions indicates that it is not each and every omission or mistake in the nomination paper that entails its rejection but only something more which is substantial and goes to the root of the matter, of the nature indicated by me earlier.
13. It only remains to consider the Government Pleader's plea against the maintainability of the writ petition. The parameters for interference have been laid down in the above decisions and needless to say the rejection of the nomination papers of the petitioners in this case falls squarely withinthe ambit of these decisions. The rejection of the nominations has been quite arbitrary, and irrational and therefore I have no hesitation in quashing the same.
The original petition is therefore, allowed. The rejection of the nominations of the petitioners for election to the managing committee of the second respondent society to be held on June 27, 1994 is quashed. The third respondent is directed to treat the nominations fo the petitioners as valid and to include their names in the ballot papers for the election.
No costs.
A copy of this judgment will be forwarded to the Registrar of Co-operative Societies, Thiruvananthapuram for information and appropriate action.