The de facto doctrine was applied by the court to uphold the validity of the acts of the returning officer, emphasizing the public interest and the binding nature of the actions performed within the scope of his authority.

Sreedharan, J.

Appellant is the writ petitioner in O.P. No. 12214/91. That petition was filed praying for a declaration that election to the 4th respondent Co-operative Society is null and void. Writ petitioner is a member of that Society. It was the case of the writ petitioner that election was attempted to be held without following statutory requirements and without giving the members an opportunity to file objections against enrolment of members. Large scale enrolment was effected without scrutinising the applications and verifying the eligibility of the applicants. It was also contended that scrutiny of voters list as required under Rule 35 of the Kerala Co-operative Societies Rules was not done by the returning officer.

2. Along with the original petition, application was filed for staying the process of election. This Court granted an interim order staying the counting of votes polled and also further proceedings. This court further directed that suspect votes i.e. votes cast by ineligible persons should be collected in a separate box to be dealt with later.

3. To the counter affidavit filed by contesting respondents, writ petitioner filed reply affidavit dated 12-7-92. In that reply affidavit, it was contended that the 4th respondent society has its area of operation lying within two circles, that returning officer to such a society can be appointed only by a Joint Registrar and the returning officer in this case was appointed by an Assistant Registrar. Consequently, writ petitioner took the stand that no returning officer, as per law, has been appointed and consequently the entire proceedings taken by him are null and void. The election notification stated that the newly elected Board is to have a term of five years. But the Co-operative Societies Amendment Act provided that the term of elected Body can only be for a period of five years. Accordingly, the Notification for election to the Board for a period of five years is null and void.

4. Learned Single Judge found that the 4th respondent society is having its area of operation over two Taluks and consequently the jurisdiction exceeds one circle. In such a case, for the purpose of Rule 35(2), Joint Registrar is the authority to appoint returning officer. In the instant case, Assistant Registrar who is not competent to issue order, appointed the returning officer. Therefore it was observed that objection raised by the writ petitioner in this regard is well-founded. But the learned Single Judge took the view that the only relief asked for by the amendment is a declaration that the election Notification is null and void, that the challenge was only to the proceedings taken pursuant to Ext. P2 and not to its issue and consequently petitioner is not entitled to any other reliefs. In this view, original petition was dismissed leaving the writ petitioner to raise all disputes regarding the election under S.69 of the Co-operative Societies Act. Returning Officer was also directed to count the votes polled in the election held on 15-12-91 inclusive of the votes polled in the separate box. This decision of the learned judge is under challenge.

5. It is conceded before us that the 4th respondent Co-operative Society has its area of operation spread over more than one circle. The previous Managing Committee took a decision to hold the election on 15-12-91. Pursuant to that decision, Assistant Registrar of Co-operative Societies, exercising the power of Registrar under Rule 35 of the Rules, appointed second respondent as the returning officer. As per the Explanation to Clause (2) of Rule 35, an Assistant Registrar can exercise the power of Registrar to appoint returning officer only in the case of Primary Societies, the jurisdiction of which does not exceed one circle. In the case of Societies, the jurisdiction of which exceeds one circle, the Joint Registrar of the District concerned, is to appoint the returning officer. Since second respondent was appointed as returning