Anthrayose P.K. Vs. the Senior Inspector of Co-op. Societies and ors. - Court Judgment

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election - cancellation of nomination - article 226 of constitution of india and section 69 of kerala co-operative societies act, 1969 - appellant-writ-petitioner's nomination in election rejected by returning officer - writ petition to direct acceptance of nomination papers rejected on ground that petitioner had alternate remedy under section 69 for redressal of his grievance - petitioner challenged dismissal of writ - nomination papers in compliance with relevant formalities cannot be rejected on mere ground that seal substituted to what could be written by hand - rejection arbitrary and illegal - alternative remedy no express bar in cases of patent illegality - court can exercise jurisdiction under article 226 - held, appeal allowed and order of single judge and returning officer set aside. - - it was argued that the rejection of the nomination itself was patently bad. we are, therefore, clearly of the view that the rejection of the nomination paper is arbitrary and illegal, and the party need not be driven to proceedings under section 69 of the act.jagannadha rao, c.j.1. this appeal is preferred against the judgment of the learned single judge in o.p. no. 7361 of 1992 dated 9-6-1992. the writ petition was dismissed in limine, and against the said order the present appeal is preferred.2. the appellant-writ petitioner was a member of the co-operative bank, and was a candidate in the election to the board of directors to be held on 28-6-1992. his nomination was rejected by the returning officer on the ground that the name of the bank had not been written by hand, but a seal had been affixed. the said order of the returning officer was challenged in the writ petition, and a direction by a writ of mandamus was sought to the raturning officer (first respondent) to accept the nomination papers and permit the writ petitioner to contest the election. the learned single judge dismissed the writ petition on the ground that the petitioner had an alternate remedy by way of raising a dispute before the registrar ' under section 69 of the kerala co-operative societies act.3. we have heard learned counsel on both sides and the learned government pleader. the question that falls for consideration before us is whether the alternate remedy under section 69 of the act in the case of rejection of nomination papers by the returning officer is an absolute bar for entertaining the writ petition under article 226 of the constitution of india and even in cases where the rejection of the nomination is patently illegal and when there is no need for any evidence or further enquiry, this court should drive the affected parties to proceedings under section 69 of the act. it is contended by counsel that there is conflict of decision given by this court and that therefore the matter should be reviewed. with a view to resolving the said conflict, we are now considering the relevant case law.4. in damodaran v. joint registrar, 1989 (1) klt 656, viswanatha iyer, j. was dealing with a case of rejection of nomination. the learned judge referred to the decision of the supreme court in muthuswamy v. natarajan, air 1988 sc 616, which held that there should ordinarily be no interference at the intermediate stage of an election process under article 226 of the constitution. the learned judge further observed that on the facts of the case before him the rejection of the nominations was so revoiting to common sense and judicial conscience and that therefore this court is not precluded from interfering under article 226 of the constitution of india. in that case, the nomination had to be supported by an affidavit of the candidate testifying that he was not disqualified under rule 44. this affidavit had to be attested either by a gazetted officer or by an advocate. the affidavits contained the attestation of the advocate, but did not contain the seal. the same was rejected by the returning officer on the ground that there was no seal of the advocate. the teamed single judge noticed that the fact that the affidavit was attested by an advocate was not in dispute, and observed that the nomination papers should not have been rejected on the ground that the advocate had affixed his coal. attestation by an advocate was complete as soon as he affixed his signature as a mark of his attestation. the law did not impose a further stipulation that he should put his seal. on that ground the learned judge interfered in writ jurisdiction. similarly, in velunni v. returning officer, 1990 (2) klt 616, k.a. nayar, j. interfered in writ jurisdiction in the case of an invalid acceptance of a nomination. the learned judge held that on facts it was a clear case where the nomination ought to have been rejected as invalid, inasmuch as the particular candidate was a member of the committees of two other cooperative societies of a different type or types, and by virtue of the prohibition contained in rule 35(3)(d) (iii) he would be disqualified to contest for the election. in that context, the learned judge observed that alternate remedy was not a bar to exercise the jurisdiction under article 226 of the constitution of india. it was observed that it was clear that the nomination paper filed by the third respondent therein by his own showing was invalid and was liable to be rejected, and that, if that be so, the only other candidate who filed a valid nomination paper was the 2nd petitioner and lie had a right to be declared elected.5. the opposite view was taken by bhaskaran nambiar, j. in vadakkanchery k.s. sangam v. joint registrar, 1984 klt 477. that case also related to rejection of nomination paper. it was argued in that case that there was patent illegality in the rejection of certain nomination papers in view of rule 45(1) of the rules. it was argued that the rejection of the nomination itself was patently bad. the learned judge felt that this court would not interfere under article 226 of the constitution of india. the learned judge held that alternate remedy provided under section 69 of the act is an effective bar for a writ being issued under article 226 of the constitution of india. in that case, the learned judge referred to the decisions of this court in vasu pillai v. registrar of co-operative societies, 1965 klt 447 (decided by mathew, j.) and narayanan nambiar v. dy. registrar, 1973 klt 213, decided by a division bench consisting of govindan nair, j. (as he then was) and sadasivan, j. we have gone through the three cases, and we find that these two later cases which were followed by bhaskaran nambiar, j. did not specifically deal with the question of alternate remedy. those decisions dealt with the question as to whether a particular dispute in respect of election of a director of the co-operative society was falling within section 69 of the act and whether it would touch the business of the society or not. we are of the view that those two decisions have not decided that under no circumstances a writ would not lie, even in cases of patent rejection or acceptance of nomination papers. we are, therefore, unable to agree with the view taken by bhaskaran nambiar, j. in vadakkanchery k.s. sangam v. joint registrar, 1984 klt 477. the decision of gopalan nambiar, j., (as he then was), in unnikrishna kurup v. ramunni nair, 1967 klt 934 deals with the question of arrears of money due from a particular member and that the matter required further investigation of facts. further, in that case, the election was declared in respect of some other wards. therefore, the learned single judge held that interference under article 226 of the constitution would not be possible. that case, in our opinion, would stand on a different footing. we, therefore, overrule the decision of bhaskaran nambiar, j. in vadakkanchery k.s. sangam v. juint registrar, 1984 klt 477 to the limited extent that alternate remedy was an absolute bar for interference under article 226 of the constitution of india.6. the view which we have taken, namely, that alternate remedy is not an absolute bar, is also the view taken by various other high courts: sidappa v. election officer, air 1980 kant 104; gangadhar v. premchand, air 1958 mp 182; r.p. singh v. state, air 1973 patna 139; darbara singh v. vice-chancellor, air 1961 punj 194 and t. abbayya v. election officer, (1979) 2 an wr 284.7. there are certain other decisions, which have dealt with the questions relating to jurisdiction or questions which go to the root of the jurisdiction or fundamental to the election. in such cases, it has been held that the high court could interfere in article 226 of the constitution of india. those cases are govindan v. dy. registrar of co-op. societies, 1983 klt 1038 : (air 1984 ker 26) decided by paripoornan, j., devasay v. asst. reg. of co-op. societies, 1976 klt 40; and mavalikara co-op. h. s. ltd. v. dist. co-op. bank 1974 klt 783. for the purpose of the present case, we need not deal with the above said cases which deal with the questions relating to jurisdiction or questions which go to the root of the jurisdiction.8. for the aforesaid reasons, we accept the decision of viswanathan iyer, j. in damadaran v. joint registrar, 1989 (1) klt 858 and k.a. nayar, j. in velunni v. returning officer, 1990 (2) klt 816, and overrule the decision of bhaskaran nambiar, j. in vadakkanchery k.s. sangam v. joint registrar, 1984 klt 477.9. coming to the present case before us, we find that the nomination paper is in compliance with the provisions of the act and rules in all respects. the only objection to the nomination paper that was raised by the returning officer was that in the place where the name of the society had to be filled up, instead of being filled up by hand, a seal of the society was put the seal mentions the name of the society. in other words, the seal was substituted to what could have been written by hand. in our view, there is substantial compliance with the provisions that the name of the society has to be filled up in that particular column. in fact, the seal was put against the said column, that being the heading of the nomination paper. we are, therefore, clearly of the view that the rejection of the nomination paper is arbitrary and illegal, and the party need not be driven to proceedings under section 69 of the act. this court could' in such patent cases interfere under article 226 of the constitution of india.10. for the aforesaid reasons, the writ appeal is allowed, the order of the learned single judge as also the orders of the returning officer are set aside. the returning officer, the first respondent, is directed to accept the nomination of the petitioner, and then proceed in accordance with law, with the election.