Decided on January 01,1995

MOOSA Appellant


Sreedharan, J. - (1.)Writ petitioner in O. P. 13197 of 1994 is the appellant He wanted to contest the election to the Board of Directors of The third respendent Co-operative Bank. Nomination paper was submitted on 1-9-1994 As per the schem of the election date and time for scrutiny was fixed as 2-9-1994 11 A. M. At the scrutiny, the Returning Officer rejected the nomination on account of the petitioner being a defaulter. This action of the Returning Officer was questioned before the learned single Judge on the ground that before the time of scrutiny, arrears were ptid and so the disqualification, if any, was removed and the petitioner should have been treated as a candidate entitled to contest the election. According to the Mtitioner the material point of time for verifying the qualifications is the time fixed for scrutiny and not the time for filing nomination. This contention was not accepted by the learned single Judge relying on the decision in Velunni v. Returning Officer (1990) (2) KLT 816). Consequently, the Original Petition was dismissed. The carrectness of that decision is under challenge.
(2.)Learned counsel representing the appellant contends that the Jearned single Judge was not justified in dismissing the Original Petition relying on Velunni's case (1990 (2) KLT 816) since a contrary view has been taken by another learned single Judge in Kuriakose Baby v. Kadavoor Service Co-op. Bank (1994 (2) KLT 656). In Kuriakose Baby's case, the learned single Judge took the view that if a candidate clears the debt prior to the time for scrutiny of nomination, his nomination is not liable to be rejected by the Returning
(3.)Rule 35 of the Co-operative Societies Rules deals with the procedure regarding the conduct of election to the Committee of Co-operative Societies. Clause (3) of that Rule provides for the various steps to be taken by the Returning Officer. Sub-clauses (a) and (b) of Clause (3) inter alia,Provide for preparation of the final voters' list and its publication. Sub-clause (c) deals with nomination of candidates for election. As per sub-clause (i).the nomination of the candidate should be made in the form prescribed by the Society. Sub-clause (ii) of sub-clause (c) further states that every nomination paper shall be signed by two members whose names are included in the list of voters. One of the members shall sign the form as proposer and the other as seconder for the nomination paper shall contain a declaration signed by the candidate proposed for election to the effect that he is willing to stand for election. Sub-clause (iii) then provides that every nomination paper shall be presented in person or sent by registered post acknowledgment due by the candidate himself or his proposer or seconder to the Returning Officer so as to reach him before the date and hour specified for receipt of the same. Thereafter comes sub-clause (d) to Clause 3 of Rule 35. It deals with the conditions to be satisfied and the qualifications to be fulfilled by the candidates for being nominated. No member of the Co-operative Society shall he nominated if he is ineligible to vote, if he does not possess the necessary qualifications as specified in the bye-laws or is disqualified to be a member under the provisions of the Act and Rules. So a person can be nominated as contemplated by sub-clause (c) referred to above only if he is not having any of the disqualifications mentioned in sub-clause (d) of Clause 3, To see what are the disqualifications that can be attached to a candidate, one has to refer to Rule 44 of the Co-operative Societies Rules. That Rule inter alia, provides that no member of a Society shall be eligible for being elected or appointed as member of the Co-operative Society under Section 28 if he is in default to a Society or to any other Society in respect of any loan or loans taken by him or loan in which he has stood surety. So a person who is not so disqualified alone can be nominated by the proposer and the seconder. Nomination is to be made by the proposer and the seconder. Qualification of the candidate should be with reference to the time of nomination.

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