Attestation by an Advocate/Gazetted Officer is a mandatory requirement for nomination as per Rule 35(3)(e)(ii) of the Co-operative Societies Rules.

The question that has come up for consideration in this case is whether Returning Officer is justified in rejecting the petitioner's nomination under Rule 35(3)(e)(ii) of the Co-operative Societies Rules, since nomination was not attested by an Advocate/Gazetted Officer.

2. Ext. P.1 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 Rule 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 not to defeat it on technical grounds. Counsel relied on the decision of this Court in Santhosh v. Joint Registrar, 1994 (2) KLT 141 : (AIR 1995 Ker 229) 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 defects 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 authorized officer is highlighted in the election notification as well as in the circular issued by Registrar. Therefore returning officer is justified in rejecting the nomination.

6. The scope of Rule 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 : (AIR 1995 Ker 229). Learned Judge held as follows (at page 233 of AIR) :

"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 nominations 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 . . .