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1998 Supreme(Ker) 391
Judges : K.S.RADHAKRISHNAN
Hari Babu - Appellant
Versus
Returning Officer - Respondent
Case No : O.P. No. 16914 of 1998
Decided On : 09/14/1998
Advocates Appeared :
D. Somasundaram For Petitioner Government Pleader (N. Reghu raj) For Respondent
The main legal point established is that attestation by an Advocate or Gazetted Officer is a mandatory requirement for nomination under the Co-operative Societies Rules, as it attaches solemnity to the candidate's declaration and is essential for the validity of the nomination.
Headnote:
Returning Officer - Nomination Rejection - Co-operative Societies Rules - R.35(3)(e)(ii)
Fact of the Case:
The case involved the rejection of the petitioner's nomination by the Returning Officer under R.35(3)(e)(ii) of the Co-operative Societies Rules, as the nomination was not attested by an Advocate/Gazetted Officer.
Finding of the Court:
The court found that attestation by an Advocate/Gazetted Officer was a mandatory requirement for nomination, as highlighted in the election notification and circular issued by the Registrar. The court emphasized the essential and material elements in the nomination, including proper attestation of the affidavit, and upheld the Returning Officer's decision to reject the nomination due to non-attestation.
Issues: The main contention was whether attestation by an Advocate/Gazetted Officer was a mandatory requirement for nomination, and the preservation of the right to contest an election.
Ratio Decidendi: The court held that while technicalities should not prevail when nominations are without flaw and valid, attestation by an Advocate/Gazetted Officer was essential for the nomination, as it attached solemnity to the declaration made by the candidate intending to stand for election.
Final Decision: The court dismissed the Original Petition, stating that the Returning Officer was justified in rejecting the nomination due to non-attestation by an Advocate or Gazetted Officer.
K.S. Radhakrishnan, J.
The question that has come up for consideration in this case is whether Returning Officer is justified in rejecting the petitioner's nomination under R.35(3)(e)(ii) of the Co-operative Societies Rules, since nomination was not attested by an Advocate/ Gazetted Officer.
2. Ext. P1 is the election notification dated 17.8.98 published by the Returning Officer. The notification specifically says that the candidate has to submit nomination paper along with the affidavit duly attested. Registrar has also issued a circular insisting attestation of the affidavit by an advocate/gazetted Officer/ Rectification Officer.
3. Petitioner's nomination was scrutinised by the Returning Officer on 27.8.1998. On scrutiny it was found that nomination was not filed in compliance with R.35(3)(c)(ii) of the Co-operative Societies Rules and was rejected. Aggrieved by the same petitioner has filed this writ petition.
4. The main contention raised by counsel for petitioner is that attestation by advocate/gazetted Officer is not a mandatory requirement. Counsel submitted there is no dispute with regard to the identity of the person and nobody has objected in submitting his nomination. Counsel submitted there is no dispute with regard to the signature of the petitioner. According to him, the right to contest an election is a very valuable right and the attempt of the Returning Officer should be to preserve that right and notto defeat it on technical grounds. Counsel relied on the decision of this Court in Santhosh v. Joint Registrar, 1994 (2) KLT 141 and contended that the attempt of the Returning Officer should be to enable the member to contest, instead of ejecting him at the threshold on the basis of immaterial inconsequential defaults or mistakes in the nomination paper.
5. Learned Government Pleader also relied on the above mentioned decision and contended that the signatures in the nomination, declaration and affidavit and also the proper attestation of the affidavit are essential and material elements in the nomination. The necessity of getting his affidavit attested by an authorised officer is highlighted in the election notification as well as in the circular issued by Registrar. Therefore, retiming officer is justified in rejecting the nomination.
6. The scope of R.35(3)(c)(ii) of the Co-operative Societies Rules was considered in detail by a learned judge of this Court in Santhosh v. Joint Registrar, 1994(2) KLT 141. Learned Judge held as follows:
"There should be indeed a very careful and close scrutiny regarding the qualifications and disqualifications of the candidates 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."
In the above mentioned decision, there was proper attestation by an Advocate. The defect was that the nomination submitted by the petitioners therein did not contain the name of the society in the affidavit in support of the nomination, and in some of the petitioners case, defect was, date of the election was not filled up in the affidavit. There was no case that the Advocate has not attested the affidavit. In the instant case, there is no attestation by an Advocate or Gazetted Officer in the affidavit filed by the candidate.
7. A candidate who intends to stand for election has to affirm 16 requirements. An extract of the affidavit is shown as follows:
"I (here enter name) (here enter father's name) aged member No of do hereby solemnly affirm and state as follows:
1. I have filed nomination paper to stand for election (other committee of the
