JUDGMENT
1. These two related original petitions concern the elections to the managing committee of the 4th respondent Bank, which is a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 (the Act for short). O.P No. 6007 of 1988 came up for preliminary hearing yesterday. Since the questions involved were the same as in O.P No. 5694 of 1988, the learned Government Pleader appeared and took notice on behalf of respondents 1 to 3. The Bank itself had not entered appearance, in the other case though notice has been served. This court does not generally entertain challenges at the stage of scrutiny of nominations for election to the committee of a Co-operartive Society, as they are best left to be agitated in an election petition filed under S. 69 of the Act. In fact the Supreme Court has in Muthuswamy v. Natarajan, (1988) 1 SCC 572 : AIR 1988 SC 616 held that there should ordinarily be no interference at the intermediate, stage of an election process under Article 226 of the Constitution. But the facts of these cases and the rejection of the nominations are so revolting to common sense and judicial conscience that I feel these are cases where an exception has to be made.
2. The schedule for election to the managing committee of the 4th respondent Bank was published by the third respondent Returning Officer as per the notice Ext. P2 Nominations were to be submitted on 11-7-1988 and the scrutiny was fixed for 12-7-1988. 43 nominations including those of the petitioners were submitted on 11-7-1988. The notification Ext. P2 required the nomination 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 of the various petitioners in these two original petitions were attested by Sri. G.K Sreedharan, an advocate of the Hosdurg Bar, all of them on 11-7-1988. They contained his signature as attestor, but did not contain any seal. But all these nominations (except that of the 8th petitioner in O.P No. 6007 of 1988) were rejected by the Reuming Officer after scruity on 12-7-1988 on the ground that the identity of the attesting authority was not proved beyond doubt, “as there was no rubber seal”. Thus the only ground on which the nominations stood rejected was that the attesting advocate C.K Sreedharan did not affix his seal as part of the attestation.
3. The petitioners challenge the rejection of the nominations pointing out that affixing the seal as part of the attestation was not required either by the election notification Ext. P2 or by rule 35 of the Kerala Co-operative Societies Rules (Rules for short). Rule 35(3)(c)(i) and (ii) which prescribes the mode of filing of nominations reads as follows:
“(i) The nomination of the candidates for election shall be made in the form prescribed by the society which oh’ application shall be supplied by the committee to any member, free of cost.
(ii) Every nomination paper shall be signed by two members whose names are included in the list of members. One of the members shallsign the Formas proposer and the other asseconder for the nomination. The nomination paper shall also contain a declaration signed by the candidate proposed for election to the effect that he is willing to stand for election.”
4. Petitioners challenge the rejection of the nominations as totally malafide, personal, as well as the in the sense that the rejection was for reasons not warranted by law.
5. The counter affidavit filed by the third respondent refutes the allegation of personal malafides. I accept this statement. However, the question still remains whether the third respondent has acted legally in rejecting the nominations for the reason stated, namely absence of seal of the attesting advocate.
6. The election notification only requires attestation. No seal is required to be affixed by an advocate. There is no case for the respondents that the prescribed form of nomination required seal for the attestation by an Advocate. There is also no rule which prescribes that attestation by an advocate should be with seal. An advocate at tests by virtue of his position as an advocate and not in any official capacity. Such attestation is done by merely affixing the signature. So long as the identity is not in dispute, attestation by an advocate is not nullified for the reason that he did not affix a rubber stamp or seal. The rubber stamp or seal is not part of the advocate's signature. At best they help only to identify the signatory. The basic question is whether an advocate has attested and not whether he has affixed his seal. Attestation by an advocate is complete as soon as he affixes his signature as a mark of his attestation. The law does not impose a further stipulation that it becomes complete or a valid attestation only if a seal is affixed.
7. Kochu Thommen, J. stated thus in his judgment in O.P No. 3621 of 1981 dated May 31, 1984:—
“An advocate or a gazetted officer or a rectification officer is competent toattest the affidavit under the relevant provisions. Unlike the last two persons, an advocate does not represent any office, but he signs in his capacity as an advocate. An advocate is not required to affix a seal when he signs as an advocate. He is competent to attest an affidavit by merely putting his signature. His signature indicates the attestation in full force. Aseal is not required. The impugned orders Exts. P3 to P5 are accordingly invalid. Theyarequashed.”
8. I am in agreement with the above observations.
9. The third respondent therefore acted illegally in rejecting the nomination papers on the ground that the attestation by the advocate did not contain his seal. When the nominations are rejected on a ground which besides being illegal, is obnoxious to common sense and shocks the judicial conscience, this court should interfere even at this stage to set right the injustice. The action of the Returning Officer standsoutside the realms of law and it is as if he has acted arbitrarily, and on whims and fancies. Refusal to interfere in such matters will be perpetuation of an injustice. It is therefore that I observed even at the outset that this case is an exception to the normal rule against interference at the stage of scrutiny of nomination papers.
10. There was a commission issued by this court when the original: petition was admitted. The Commissioner has submitted his report in which he has detailed the reasons which led to the rejection of 27 out of 43 nominations. There are 17 petitioners in the two original petitions together. So far as petitioners 8, 10 and 11 in O.P No. 6007 of 1988 are concerned, the reasons stated for the “rejection of the nominations are as follows. Petitioner No. 8-Identity of the attesting authority not proved beyond doubt. The nomination of petitioner No. 10 was rejected also on the ground that loan was outstanding against him as on 11-7-1988, apart from the fact that rubber seal was absent in the attestation. So far as petitioner No. 11 is concerned, the rejection was on the grounds that there was no rubber seal in the attestation and that her nomination paper was presented by a person other than the proposer, seconder or candidate. Since the rejection of the nomination papers of these petitioners was not solely referable to the absence of rubber seal of the attesting authority, they are not entitled to any relief fromthis court.
11. O.P No. 5694 of 1988 is allowed. O.P No. 6007 of 1988 is allowed so far as petitioner Nos. 1 to 7, 9 and 12 to 16 are concerned. It will stand dismissed so far as petitioners 8, 10 and 11 are concerned. The third respondent shall accept the nominations of the petitioner in O.P No. 5694 of 1988 and petitioners Nos. 1 to 7, 9 and 12 to 16 in O.P No. 6007 of 1988 and take steps to have the election proceeded with from the stage at which it was on 12-7-1988. The elections shall be held as expeditiously as possible. Issue photo copy of the judgment on usual terms.
12. Allowed