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ANTONY v/s RETURNING OFFICER

    O.P. No. 512 of 1980

    Decided On, 20 January 1981

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE GEORGE VADAKKEL

    George Varghese Kannanthanam, P.C. Joseph Pazheparambil, Abraham Vakkanal & Kurian George For Petitioner P.K. Kesavan Nair, K.N. Nurayai a Pillai & T.K Venugopalan For 5th Respondent P Sukumaran Nair, A.K. Chinnan & s. Soinan For 6th Respondent Govt. Pleader For 2nd Respondent



Judgment Text

1. The petitioner herein impungs the validity of R.160(I)(d) of the Co-operative Societies Rules, 1969 (hereinafter called the Rules). That provision is to the effect that "if the voter has not voted for such number of candidates as are to be elected or voted for more candidates than the number required to be elected" the ballot paper shall be rejected. The petitioner was a delegate entitled to vote in so far as his name was included in the list of voters for the constituency 'Delegates of District Co-operative Banks' as envisaged by R.155(4) of the Rules. His case is that though he obtained 4 votes, the ballot papers, on which the said votes were expressed or marked, were rejected for the reason that the voters voted only for one person, the petitioner himself and not for two persons. Therefore he prays that R.160(1)(d) mentioned above be declared as ultra vires and that he be declared as having been elected as the returned candidate.


2. The only question that arises for consideration is as to whether the submission as aforesaid as regards R.160(1)(d) is to be accepted. According to the learned counsel for the petitioner the said rule does not in any way advance or carry out the purposes of the Kerala Co-operative Societies Act, 1969 (hereinafter called the Act) and is inconsistent with R.158 (9) which confers on the vote

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rs right of vote and enables them to exercise such right in favour of such candidate or candidates for whom a voter desires to vote.


3. It will be advantageous at this stage to read R.158 (9) of the Rules. It reads:


"158. (9) On receiving the ballot paper, a member shall forthwith proceed to the polling compartment, make the mark 'X' or '-l-' on the ballot paper against the name or names of the candidate or candidates for whom he desires to vote and put the ballot paper in the ballot box with the utmost secrecy." (emphasis supplied)


The argument is that having conferred the right of vote on a voter as aforesaid enabling him to vote for whom he desires to vote, this right is taken away by providing that a ballot paper on which a voter has voted only for one candidate would be rejected. The effect of R.160 (1) (d) is as aforesaid. That provision reads:


"160. Rejection of ballot papers (1) A ballot paper shall be rejected:


(a) xx xx xx


(b) xx xx xx


(c) xx xx xx


(d) if the voter has not voted for such number of candidates as are to be elected or voted for more candidates than the number required to be elected."


Turning to the explanation to sub-rule (4) of R.155 it is seen that the constituency "Delegates of District Co-operative Banks" is to be represented by two delegates in the State Co-operative Union constituted under S.89 (1) of the Act.


4. S.89 mentioned above provides that the Government shall by notification in the gazette establish a State Co-operative Union. Sub-section (2) thereof provides that that union shall consist of a General Body and a Managing Committee Under sub-section (4) thereof the Managing Committee is to consist of the members mentioned in clauses (a) to (e). Clause (c) of sub-s. 4 of S 89 provides that two members elected in such manner as may be prescribed by the delegates of the District Co-operative Banks from among themselves are also to be on the Managing Committee of the State Co-operative Union. It is with reference to S.89 (4) (c) that the explanation to sub-rule (4) of R.155 says that the constituency "delegates of District Co-operative Banks" are to elect two delegates for representing that constituency in the Managing Committee of the State Co-operative Union.


5. The learned counsel for the petitioner submits that S.89 (4) (c) which provides that two members elected in such manner as may be prescribed by the rules by the delegates of the District Co-operative Banks from among themselves does not restrict a voter's right to vote only for one or curtail his right to vote for anyone or both of the two According to the learned counsel for the petitioner, R.160 (I) (d) in so far as by its first part requires a voter to vote for such number of candidates as are to be elected, namely, two, so far as the constituency of "Delegates of District Co-operative Banks" is concerned does not serve the purposes intended by S.89 of the Act and that the same is against the scheme of the said section as also R.158 (9) of the Rules, which is in tune with the provisions of S.89.


6. R.152(1) of the Rules provides for the constitution of the General Body mentioned in S.89 (2) (a) of the Act. It is not necessary to examine the same in detail and it is only sufficient to mention the aforesaid provision. R.152 (2) provides for the constitution of the Managing Committee mentioned in S 89 (2) (b) of the Act. Under R.152 (2), (omitting unnecessary details) the Managing Committee members of the District Cooperative Banks shall from among themselves elect their delegates by a resolution passed at the meeting of the Managing Committee. R.153 provides for the election of a member of the Managing Committee under clause (a) of sub-section (4) of S.89. Thereunder the delegates of the Co-operative Banks falling under clauses (b) and (c) of S.89 (4) are to be elected by the delegates of the Apex Society or the District Co-operative Bank from among themselves. The petitioner was a delegate entitled to be elected as one of the two members of the Managing Committee under S.89 (4) (c) of the Act. The rejected ballot papers were ballot papers on which delegates who were entitled to vote for the two members mentioned in S.89 (4) (c) of the Act exercised their right to vote. The submission on behalf of the petitioner is that the rejection of the ballot papers for the reason that these voters exercised their vote only in favour of one of the delegates is not warranted by the provisions of S.89 of the Act referred to above. It is on that basis that the provision enabling rejection of such ballot papers in R.160 (1) (d) is impugned herein.


7. At the outset it is necessary to advert to a contention advanced on behalf of the respondents that the petitioner has an alternate remedy under S.69 of the Act and that therefore this court will not invoke its extra-ordinary jurisdiction in favour of the petitioner. I do not think that this contention merits any detailed examination. As pointed out in Devassy v. Asst. Registrar (1976 KLT. 40) "when the question raised is fundamental and is about the jurisdiction", I do not think that this Court will refrain from examining that question. The petitioner impugns the vires of a provision of the Rules. The petitioner cannot raise that question in any of the proceedings under S.69 of the Act. So long as that provision stands in the way of the petitioner, it is futile for him to invoke the jurisdiction of the concerned authority under S69 of the Act.


8. It is then contended on behalf of the respondents that the petitioner having stood for election submitting a nomination for that purpose, he cannot now be heard to say that the provision in the rules is bad or void. The submission is that he has submitted to the procedure prescribed by the statutory rules, one of which is R.160 (1) (d) The submission appears to be that the petitioner should have approached this Court after submitting the nomination or even earlier The learned counsel appearing for the respondents concede that it may perhaps be not possible for the petitioner to impugn the concerned provision without submitting a nomination for election. It was stated that at that stage it can well be contended that the petitioner has no locus standi to impugn the provision in R.160 (1) (d) It is for that reason and on that basis that it was contended that the opportune moment for the petitioner to approach this Court would have been after submitting the nomination.


9. I fail to understand the reason behind the submission as aforesaid in the preceding paragraph. If the submission be to the procedure for election, such submission is there once the petitioner chooses to submit the nomination. It does not. therefore matter whether the petitioner impugns the provision in this Court immediately thereafter or after the results are announced; and if it be that the petitioner is to approach this Court impugning a statutory provision before he submits a nomination, as conceded on behalf of the respondent, he would be met with the contention that he is not an aggrieved person and he has no locus standi at that stage.


10. Certain decisions have been cited before me in support of the contention that in such situation as this the petitioner would be precluded from approaching this court impugning the statutory provision like R.160 (1) (d) of the Rules. The main decision relied on on behalf of the respondents is the decision in Kriahnaswamy v S. I. Film Chamber (AIR. 1969 Madras 42). That case concerned the question of issue of an interim injunction in a suit. Considering the question of balance of convenience, and threat of mischief, irreparable injury and other matters, the Madras High Court in the aforesaid decision took the view that no interim injunction restraining certain persons who have been elected to a society from holding a meeting is to be issued. No doubt, there are certain observations therein to the effect that a party who has submitted to or acquiesced in an election cannot thereafter object to the same. I am not prepared to extend the principle stated as aforesaid so fas as the case on hand is concerned, wherein the statutory provision is being questioned as being ultra vires of the provisions of the Act


11. It is also necessary to advert to another contention advanced on behalf of the respondents, namely, that the right to stand as a candidate and contest an election is not common law right, that it is a special right created by the statute and that it can only be exercised on the conditions laid down by the statute. I do not think that the said principle in any way militates against the contention advanced on behalf of the petitioner in impugning R.160 (1) (d) of the Rules. In fact the contention is that the said provision is not in tune with the provisions of the Act and particularly S.89 thereof and that the same is violative or ultra vires of the provisions of the Act


12. In my view the argument advanced on behalf of the petitioner is forceful and right. As already indicated S.89 (4) (c) does not say that each voter is to elect two members who are to be on the Managing Committee from the Constituency of "Delegates of District Co-operative Banks". The said provision only says that the Managing Committee shall be constituted by the Government and that the committee shall consist of, among others, two members elected in such manner as may be prescribed, by the Delegates of the District Co-operative Banks from among themselves. The rules and particularly R.158 (9) confers a right of vote and prescribes the manner in which each voter is to exercise his right of vote. Thereby he is to express his desire as to in whose favour he is voting by marking- 'x' or '-1-' on the ballot paper against the name or names of the candidate or candidates on receipt of the ballot paper. Here again the provision does not say that each voter is to exercise his right of vote only in favour of two or more. It enables every voter to exercise his right of vote in the manner he desires and in favour of the candidate or candidates for whom he desires to vote If this be so, there is no reason to reject a ballot paper on which a voter has exercised his right of vote thereby voting for any such candidate or candidates for whom he desires to vote. So viewed, the provision in R.160(1)(d) to the effect that if a voter has not voted for such number of candidates as are to be elected (so far as the constituency of Delegates of District Co-operative Banks is concerned this is two) his ballot paper shall be rejected cannot be sustained I hold so.


13. There was some argument on this aspect with reference to the latter part of R.160 (1) (d) of the Rules. The latter part provides that a ballot paper shall be rejected if a voter has voted for more candidates than the number required to be elected. This is so as is ought to be in any election. Where a voter has voted for more candidates than he is allowed, the ballot paper will have to be rejected for uncertainty I do not think that the latter part of R.160 (1) (d) stands on a par with first part of R.160 (1) (d).


14. In view of what is stated above, it is necessary to direct the first respondent, Returning Officer, to proceed to declare the result of the election in question afresh without taking into account the first part of R.160(1) (d) of the Rules and on the basis that that rule does not exist In that view it is necessary to quash the declaration made by the first respondent that respondents 5 and 6 have been returned from the constituency of "Delegates of District Co-operative Banks". I do so. I direct the first respondent to proceed from the stage before the declaration of the results in the light of what is stated hereinbefore and in accordance with the provisions of law governing the same.


This writ petition is allowed to the above extent. There will be no order as regards costs
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