IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 CRP.NO. 787 OF 2004() --------------------- {AS.9/2002 OF THE DISTRICT COURT COURT,THODUPUZHA OP9ELE).24/2000 OF THE MUNSIFF'S COURT, DEVICOLAM} .................... REVN. PETITIONER(S): 1ST RESPONDENT/APPELLANT ------------------------------------------------------------ CHANDRAMOORTHY, AGED 34 YEARS, S/O.K.S.M.RAMASWAMY MANNADI, RESIDING AT KOVILOOR KARA, VATTAVADA VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SRI.P.R.SREEJITH RESPONDENT(S): PETITIONER/RESPONDENTS 2 & 3 ---------------------------------------------------------- 1. V.RAMASWAMY, AGED 47 YEARS, S/O.VELLASWAMY, KEEZHVALASAPPAPTTY, KATTAKKAMBAM VILLAGE, DEVIKULAM TALUK. 2. SMT.ULAKATHAL, AGED ABOUT 47 YEARS, W/O.K.G.SELVOM, RESIDING AT SOOPA VEEDU, KOVILOOR KARA,VATTAVADA VILLAGE, IDUKKI DISTRICT. 3. SMT.MANOHARI, AGED ABOUT 37 YEARS, D/O.RAMASWAMY, RESIDING AT KOVILOOR KARA, VATTAVADA VILLAGE. R1 BY ADV. SRI.SATHISH NINAN & SRI.SANTHOSH MATHEW THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.NO. 787 OF 2004 :: :: ORDER ON I.A.No.1907/04 IN CRP No.787/04 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 19.2.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. ---------------------------------------------------- C.R.P.No.787 of 2004 --------------------------------------------------- Dated this the 19th day of February, 2010 O R D E R Petitioner is the returned candidate from the 5th Koviloor North Constituency of Vatavada Grama Panchayat. The above constituency in the panchayat was reserved for Scheduled Tribes. In the general election held on 25.9.2000, the petitioner was elected having obtained majority of votes. His election was impeached by the 1st respondent herein who was also a contestant contending that the petitioner belonged to a backward community and, thus, disqualified to contest the election from the constituency reserved for Scheduled Tribe. It was the case of the first respondent that the petitioner belonged to Hindu-Velan community and initially his nomination was rejected by the Returning Officer being satisfied that he does not belong to Scheduled Tribe. But the same Returning Officer reversed the order of rejecting the nomination and, subsequently, improperly accepted the C.R.P.No.787 of 2004 :: 2 :: nomination of the petitioner was the case of the first respondent. In the election petition, the other contestants were also impleaded as co-respondents. Those respondents remained ex parte. Petitioner resisted the challenge against his election contending that he belongs to Hindu Malaya Community, which is recognised as a Scheduled Tribe. 2. In the enquiry over the petition, on the side of the first respondent/petitioner in the election petition, Pws.1 to 4 were examined and Exts.A1 to A7 were marked. On the side of the revision petitioner/first respondent in the election petition, four witnesses were examined as Rws.1 to 4 and Exts.B1 to B6 were marked. In addition, Exts.X1 to X4 series were also marked in evidence, as being summoned and produced under the orders of the court. The learned Munsiff, after examining the materials produced and hearing the counsel on both sides, came to the conclusion that the revision petitioner is Hindu Velan, a backward community, and as such disqualified to contest C.R.P.No.787 of 2004 :: 3 :: from the constituency reserved for the Scheduled Tribe. The election of the revision petitioner as the returned candidate from the reserved constituency was therefore declared void and set aside. 3. First respondent/petitioner in the election petition had also sought a further direction to declare him as the elected candidate from the constituency on declaring the election of the petitioner as void. However, that relief was turned down by the learned Munsiff, noticing that he had obtained just 5 votes out of the votes polled in the election and one among the other respondents in the election petition, 2nd respondent had received 80 votes. 4. Petitioner preferred an appeal challenging the decision of the learned Munsiff before the District Collector, Thodupuzha. The District Judge, after re- appreciation of the materials produced and hearing the counsel on both sides, concurred with the views formed by the learned Munsiff and concluded that the petitioner was disqualified as not being a member of the Scheduled Tribe C.R.P.No.787 of 2004 :: 4 :: to contest the election from a constituency reserved for that tribe. The appeal was dismissed. In that appeal, the first respondent had filed a cross-objection reiterating the relief claimed in his election petition for declaring him as the returned candidate after holding that the election of the returned candidate as void. The cross-objection was found meritless and it was also dismissed by the appellate judge. Revision is filed by the petitioner impeaching the concurrent decision rendered by the two inferior courts holding that th election of the petitioner as the returned candidate from the constituency reserved for the Scheduled Tribe is void for the reason that he is not a member of Scheduled Tribe, but of a backward community. 5. The first respondent alone has entered appearance, after service of notice. I heard learned counsel for the petitioner and also that of the first respondent. 6. The learned counsel for the revision petitioner submitted that the materials produced before the trial court evidencing that the petitioner belonged to a Scheduled C.R.P.No.787 of 2004 :: 5 :: Tribe community were not appreciated or evaluated in the proper perspective by both the courts below and it has caused resulted in forming wrong conclusions leading to miscarriage of justice. Inviting my attention to sub section (2) of Section 52 of the Panchayat Raj Act, the learned counsel for the revision petitioner contended that with the nomination for contesting from a reserved constituency the candidate need only file a declaration that he belong to the caste/tribe for which the constituency has been reserved. So much so, the return of the nomination paper at the first instance by the Returning Officer, without noticing the declaration filed has no consequence in the acceptance of such nomination later finding that the declaration furnished is sufficient. At the most the rejection made earlier was a mistake and it was corrected later by the returning officer. Both the courts below, according to the counsel, have gone wrong in giving undue significance to the rectification of the mistake by the returning officer. The evidence of the Returning Officer was viewed with suspicion by the trial C.R.P.No.787 of 2004 :: 6 :: court for the reason that he had corrected the mistake committed in rejecting the nomination paper at the first instance, according to the counsel. It is submitted that the petitioner has produced the ration card and certificates showing that his brother and sister belong to Hindu Malaya community to substantiate his claim that he is a member of that community recognised as an Scheduled Tribe. It is the further submission of the counsel that certificates were not issued in respect of the members of that community by the competent authority as some disputes as to their inclusion as among the Scheduled Tribes was pending consideration before the Government. Whatever that be, it is the case of the petitioner, at present, Hindu Malaya community to which the petitioner claimed to be a member is recognised as a Scheduled Tribe. 7. On the other hand, learned counsel for the first respondent contended that whether or not Hindu Malaya community is recognised as a Scheduled Tribe at present or before, that has no consequence or merit as the petitioner C.R.P.No.787 of 2004 :: 7 :: is a member of a backward class, his claim as a member of a Scheduled Tribe, according to the counsel, is belied by Exts.A3 and A4 certificates. According to the counsel, Ext.A3 is a copy of the birth extract register of the petitioner relating to the year 1964 wherein both of her parents are shown as Hindu Velan community. Ext.A4 is a copy of the birth certificate of the petitioner which also reveal that he belongs to Hindu Velan community. To counter the evidenciary value of Exts.A3 and A4 what the petitioner has produced are Exts.B2 to B6. Ext.B2 is a certificate issued by the Village Officer showing him as a member of Hindu Malaya community, a Scheduled Tribe. Ext.B3 is a ration card and Exts.B4 and B5 birth certificates of his brother and sister respectively. Ext.B6 is a transfer certificate from the educational institution where the petitioner had studied. These documents Exts.B2 to B6 have been found to be unworthy of merit, by both counts according to the counsel. The concurrent finding of fact entered, after examining the materials, by both the courts C.R.P.No.787 of 2004 :: 8 :: below that the petitioner belongs to a backward community and is not a member of the Scheduled Tribe is not liable to be interfered with in revision, is the submission of the learned counsel for the respondent. 8. I have considered the rival submissions made with reference to the judgment/order passed by the two courts below. After enforcement of the Kerala Scheduled Caste Regulation of Issue of Community Certificate 1996 (hereinafter referred to as “the Act”), the claim of any person for the benefit, concession, protection exemption or reservation provided to Scheduled Castes or Scheduled Tribes, for appointment in public services or for admission in educational institutions or for contesting for the seats reserved for them in any educational institution in the State or outside the State for the students of the State or local authority and co-operative institution, has to be proved by a certificate issued by the competent authority under that Act. The above Act has come into force on 1.12.1996. Section 3 of the Act mandates proof C.R.P.No.787 of 2004 :: 9 :: by a certificate issued by the competent authority under the Act is essential to claim benefit for a seat reserved for SC/ST, as indicated above. The above section opens with a non-obstante clause that 'notwithstanding anything contained in any other law for the time being in force' to claim any benefit as a member of Scheduled Caste/Scheduled Tribes, as indicated above, which include the right to contest an election to a reserved constituency in a local authority, has to be established by a certificate issued by the competent authority under the Act. That being so, I do not find any merit in the submission of the learned counsel for the petitioner that a declaration under Section 51 of the Panchayat Act would suffice the requirement to claim the status of a member of a Scheduled Tribe to contest an election from a constituency reserved for that tribe. The argument advanced by the learned counsel that at the relevant time, the competent authority was not issuing certificate relating to Hindu Malaya Community to which the petitioner claim as a C.R.P.No.787 of 2004 :: 10 :: member, cannot be accepted on its face value. So far as the present case is concerned, in an election dispute where the status of the returned candidate in a constituency reserved for Scheduled Tribe is disputed on the ground that he does not belong to Scheduled Tribe and materials are placed by the other side that the parents of the petitioner belong to a backward community, it is incumbent on the petitioner to produce such materials which would convincingly establish his status as a member of the Tribe for which the constituency is reserved. What has been produced is only a certificate from the Village Officer, two birth certificates relating to his brother and sister and a transfer certificate issued from a school. When the birth certificate of the petitioner and also the extract of his birth register show that his parents belong to Hindu Velan Community, the materials referred to above, Exts.B2 to B6 are only to be rejected. The finding of fact entered by the court below on the materials produced that the petitioner is not a member of the Scheduled Tribe and he was not C.R.P.No.787 of 2004 :: 11 :: qualified to contest the election from a constituency reserved for Scheduled Tribe, in the given facts of the facts, is unassailable. There is no merit in the revision. It is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//